Preamble

The House met at Eleven o'clock

PRAYERS

[Mr. SPEAKER in the Chair]

AIRCRAFT ACCIDENT, WOLVERHAMPTON

Mrs. Renée Short: (by Private Notice) asked the President of the Board of Trade whether he will make a statement on the tragic air crash yesterday in Wolverhampton, which involved the deaths of three persons.

The Minister of State, Board of Trade (Mr. Goronwy Roberts): A De Havilland Dove, G-AVHV, crashed into a house in the Wobaston estate, Wolverhampton, at 10.05 B.S.T. yesterday and burst into flames. The aircraft had been making a flight from Luton to Wolverhampton. At present, I have no evidence that, prior to the crash, this flight was in any way unusual.
Both occupants of the aircraft and one occupant of the house were killed. Two other people in the house escaped with minor injuries.
The Board of Trade's Chief Inspector of Accidents decided to carry out a formal investigation. A team of accident investigators left immediately for Wolverhampton and are now at work. A report will be published in due course.
I am sure that the House will wish to join with me in expressing sympathy with the relatives and friends of all those who died, and also with the injured.

Mrs. Short: I join with my right hon. Friend in offering sympathy to the family of my constituent who lost her life, and I am glad that the two members of her family who were there were mercifully spared.
I should also like to offer my sympathy to the families of the two members of the crew who died in the accident.
May I ask my right hon. Friend whether he can give an assurance to the other families living on this rather congested local authority housing estate that this was an unusual accident which is not likely to recur with this particular

kind of plane which uses the airfield a good deal?
Will my right hon. Friend also tell us when he expects his report to be published, and if it will be made public?
I should also like to thank my right hon. Friend for the prompt action which he and his Department took, first, in letting me know about the accident yesterday, and, secondly, for sending his inspectors to the scene of the accident so promptly.

Mr. Roberts: I appreciate what my hon. Friend has said about the usual promptness with which my officials acted in this tragic matter.
I can give the assurance, on the basis of statistics that we have, that accidents of this kind are a most unusual happening. The determination of the causes of this particular accident will depend on the investigation now in hand.
The timing of the publication of the report is a matter for my right hon. Friend and I to decide when the report has been submitted to us by the Chief Inspector.

Mr. Doughty: I am sure that the whole House will join in the sympathy extended not only to the persons who lost their lives in the aeroplane, but also to the lady who lost her life on the ground.
Will the Minister tell us whether, at the time, the aeroplane was under the control of air traffic control and was on the correct route as designated by air traffic control?

Mr. Roberts: I prefer to await the full report by the Chief Inspector, but the point raised by the hon. and learned Gentleman is most apposite.

BILL PRESENTED

SHIPBUILDING INDUSTRY

Mr. Anthony Wedgwood Benn, supported by Mr. Secretary Ross, Mr. Roy Mason, Mr. John Diamond, Mr. Harold Lever, and Dr. Ernest Davies, presented a Bill to amend section 7 of the Shipbuilding Industry Act 1967 by increasing the amount up to which the Minister of Technology may assume liability by giving guarantees under the section: And the same was read the first time; and ordered to be read a second time upon Monday next and to be printed [Bill 141].

Orders of the Day — LAW REFORM (MISCELLANEOUS PROVISIONS) BILL

As amended (in the Standing Committee), considered.

11.8 a.m.

Mr. Speaker: I have published, as is my wont, the Amendments that I have selected.
The first is new Clause 2, with which I have suggested that we take Amendment No. 2, in page 2, line 26, leave out 'the' and insert 'any'.
Amendment No. 3, in page 3, line 44, leave out from 'force' to end of line 45 and insert 'on 1st January, 1971'.
Amendment No. 4, in page 3, line 46, at beginning insert—
'Subject to section (Power of court in certain circumstances to order persons guilty of adultery to pay lump sum) (10) of this Act'.
Amendment No. 5, in page 4, line 18, column 3, at end insert—
Section 46(2) so far as it applies for the interpretation of section 42(3) of that Act.
and Amendment No. 6, in Title, line 5, after 'wife;', insert—
'to empower the court in proceedings for divorce or judicial separation to order the payment of a lump sum by a person guilty of adultery with either spouse'.
All except the time one, Amendment No. 3, seem to be connected.

New Clause 2

POWER OF COURT IN CERTAIN CIRCUM- STANCES TO ORDER PERSON GUILTY OF ADULTERY TO PAY LUMP SUM.

(1) Where in any proceedings for divorce or judicial separation either spouse alleges that the other has committed adultery with any person, then, if there is a child of the family, the spouse making the allegation (hereafter in this section referred to as 'the applicant') may include in his or her petition or answer an application for an order under this section against that person.

(2) Where such an application is made, then, subject to the provisions of this section, on granting the decree of divorce or judicial separation or at any time thereafter (whether, in the case of a decree of divorce, before or after the decree is made absolute), the court may order the person against whom an order under this section is sought to pay a lump

sum of such amount as the court thinks fair and reasonable in all the circumstances.

(3) The court shall not make an order under this section unless it is satisfied that—

(a) the person against whom the order is sought committed adultery with the spouse in question knowing that that spouse was married;
(b) the adultery caused or contributed to the breakdown of the marriage; and
(c) notwithstanding any order under section 1, 2, 3 or 4 of the Matrimonial Proceedings and Property Act 1970 (orders for maintenance pending suit, financial provision for party to marriage, etc.) made, or likely to be made, in favour of the applicant or a child of the family, the applicant has suffered, or is likely to suffer, as a result of the breakdown of the marriage, financial loss which, if an order under this section is not made, is likely to cause hardship to a child of the family.

(4)Where the court makes an order under this section it may direct to whom or in what manner the lump sum is to be paid or applied and may direct that that sum or any part thereof be settled for the benefit of the children of the marriage, the applicant and the other party to the marriage or any one or more of them.

(5) Where the court decides to direct a settlement, it may direct that the matter be referred to one of the conveyancing counsel of the court for him to settle a proper instrument to be executed by all necessary parties and may, if it thinks fit, defer the grant of the decree in question until the instrument has been duly executed.

(6) No order made under this section in proceedings for divorce, and no settlement made in pursuance of such an order, shall take effect until the decree has been made absolute.

(7) An order made under this section shall be included among the orders to which section 16 of the Maintenance Orders Act 1950 applies (which section specifies the orders enforceable under Part II of that Act).

(8) The Matrimonial Causes Act 1967 as amended by the Matrimonial Proceedings and Property Act 1970 (which confers jurisdiction on county courts in certain matrimonial proceedings) shall have effect as if this section were contained in Part I of the said Act of 1970.

(9) In this section the expressions 'child of the family' and 'the court' have the same meanings as they have respectively for the purposes of Part I of the said Act of 1970.

(10) Subsection (7) above shall extend to Scotland and Northern Ireland.—[Mr. Abse.]

Brought up, and read the First time.

Mr. Leo Abse: I beg to move, That the Clause be read a Second time.
The Bill alters some of the legal consequences that could flow from the breakdown of a marriage. However, I


believe that we have no right, when rearranging those consequences, to think only in terms of husbands, wives and co-respondents. We have a duty to concern ourselves as well, and, indeed, perhaps primarily, with the total family situation. It would be wrong if, in making alterations to the law, however desirable they may be, we added in any way still further to the grim load which already falls upon the worst victims of a marriage breakdown, that is, upon the children.
Our repugnance to the historical routes of the action that has laid for damages for adultery must not so overwhelm us that we do not see some of the positive help for children which wise judges have been able to extrapolate out of the existing squalid substantive law and out of the present miserable evidential processes. The gains which have so painfully been wrested for the children of broken marriages out of this bad law should not be swept away out of an over-zealous passion which may exist for reform.
Rather, I suggest, we should seek to consolidate and to extend rationally all the aid which may be financially possible to be given to children of a broken marriage. They, alas, suffer enough misery, and I am sure that the House would not wish needlessly to add financial insecurity to emotional insecurity. The Clause seeks to translate that aspiration positively into legislative terms.
The Clause gets away completely from the barbarous concept that a husband should be compensated for the fact that the co-respondent has had sexual intercourse with his wife. The notion that a woman is a chattel is undoubtedly offensive, and it is not surprising that women's organisations want such a devaluation of human personality to cease. But all hon. Members will, and should, be aware that the women's organisation, as has been made clear by the National Council of Women in its letter to hon. Members on the Standing Committee which considered the Bill, does not want the abolition of the action for damages for adultery without its replacement by an action in the sense of the Amendment.
The Clause does not claim to have any excessive merit, as part of its attraction,

that it is a deterrent to the wealthy interferer with those financially poorer couples who may find themselves the object of a predatory intervention. In saying that, I do not want to be interpreted as saying that I share totally the belief of the Law Commissioners, who appear to take what I regard as an unusually, for them, light view, when they put forward this suggestion:
Another argument sometimes put forward is that the risk of liability to damages deters would-be adulterers, but we do not believe that, in practice, this can often be a risk that is weighed or that, if it was, it would often deter.
I do not altogether share the view of the Law Commissioners. It is true that many criminologists, penologists, and reformers have a justifiable scepticism about the deterrent effect of punishment upon criminals, but philandering businessmen, lascivious accountants, and even, if I may say so, promiscuous lawyers, are far more calculating creatures than criminals. They count the cost, very often, of their indulgences. Oft-times, indeed, their interest in money is more compulsive than their interest in sex, and my professional experience certainly leads me to believe that the ardour of the wealthy lover oft-times evaporates with extraordinary speed when he understands that he is courting not only an attractive wife, but a heavy action in damages from an irate husband.
11.15 a.m.
Although I put forward that view, it is not the essential argument, by any means, which I am seeking to deploy to invite the House to support the Clause. Nor do I rest my argument upon the basis that an allegedly guilty man or woman should be punished. The whole purpose of the recent Divorce Reform Act was to emancipate the law from such notions, at least to some extent. But in some marriage breakdowns it is not always a case of half a dozen of one, and six of another. It is often a case of one third of a dozen of one, twice two of another, and four of yet another.
More than one or two people can be responsible for the breakdown of a marriage, and often when a third party is involved three parties are partially responsible. I believe that the community would find it an affront if, when financial means are available, not all


three parties shared the financial responsibility for what is to take place in respect of the financial future of the children.
If a wealthy woman employs a chauffeur and, by her conduct, contributes to the seduction of the chauffeur, a married man with, let us say, three children, and this is a factor leading to the breakdown of his marriage, it seems to me to be wholly wrong that such a rich woman should be regarded as totally immune, and not in any way be liable to be called upon by the court to make any contribution for the three children of the marriage who have lost a father.
If we were not to make any alteration in the Bill, we would find that all that the wife of such a chauffeur could do was to sue for maintenance from her husband, who might still be a chauffeur, who might still be a "fancy boy", but who might have little means to help the wife to create the conditions in which those children, now fatherless, could at least have something like economic security.
I suggest that it would be quite unacceptable to the community if we could have a situation in which a wealthy man could intervene in the same way in a marriage, knowing that the woman was married, and persistently have adultery with the woman, and knowing that he would be completely exempt from any financial responsibility for the children of the marriage.
I do not want a Bill which would be regarded as an open sesame to some rich philanderer who, with complete immunity, would be able to cruise past the factory gates in his leather-upholstered Rolls-Royce and importune away the prettiest wife and mother at the works, with diamonds and, doubtless, some "Black Magic". If she were only a wife, it may be said that the husband is well rid of such a mercenary creature, and it can well be said that it is no part of the duty of the law to protect her from her folly, or indeed to protect the husband from his lack of judgment in marrying her.
But she may not only be a wife: she may be a mother. In that case, do those who sponsor the Bill expect the community to believe that in such circumstances the children should not only be

left motherless, but without the funds to enable them to have the care and succour of a paid substitute mother, as they could have if the philandering rich man was called to account?
I do not regard the citing of such matters as being extravagant. It is not as if cases do not constantly come before the court in which events of this type occur. I noticed in a recent article on the issue by Mr. Adam Hopkins, in the Sunday Times, that he cited a case in which a wealthy man with a Rolls-Royce took a wife and mother away to do the rounds of the night clubs and the court, in the end, decided that the interloper should not only have to pay the heavy costs which he paid out at the night clubs for his whims, but should be called upon to pay £3,000 for the benefit of the children of the marriage which he had helped and contributed to destroying.
I quoted to the Standing Committee a recent case in which I was instructed. I observed how a judge, in giving damages, found against a man and wisely ordered that payment should be made for the benefit of the children—because there were three children and the eldest, a girl of 18, was giving up her job, to act as a substitute mother to look after the two younger children.
The judgment, in my view rightly and wisely, was that the man who had intervened and contributed to the taking of the wife should make a payment for benefit of the children, so that the total family income should not be so reduced that the girl of 18, who was giving up her job, could not only suddenly have severe limitations placed upon her whole style of life, but would also have to suffer, as would the family otherwise, a severe financial loss.
I do not think that it can be said that there is any danger of injustice occurring if the Clause in the form in which I put it before the House is adopted. It will be noted by the House that the court would not be able to make any order against a man or a woman under the Clause unless it was satisfied that the person against whom the order was sought committed adultery with the spouse in question knowing that the spouse was married.
There is no question of its being argued that we are perpetuating a law by which a man who unwittingly slept


with a married woman—unwittingly in the sense that he did not know she was married—could be called to account. What we say in the Clause is that if a person knowingly commits adultery with a married spouse and it can be shown that the adultery caused or contributed to the breakdown of the marriage, in those circumstances, if there is a child of the family and it can be shown that to give an order under the usual regulations against the husband or the wife would still leave the child to suffer financial hardship—only if those strict conditions are observed—it will be possible for the court to make an order for damages.
It cannot surely be argued that any injustice could take place, nor can it be argued that there is any question of distinguishing between a wealthy promiscuous woman and a rich promiscuous man. The Clause makes it clear that, if either of such people acts as the interloper in a marriage, and, as a consequence, contributes to the breakdown of the marriage in the view of the court, it will be open for an order to be made for the children in either circumstance.
Adultery is certainly not an involuntary act. Since sexual intercourse requires two people, it would, in my view, be very droll if the law pretended that it was a feat capable of being performed by a solitary man or a solitary woman. Since that does not correspond to the social realities and to the facts, I regard it as desirable and necessary that the children should have a priority. In those rare cases—rare, fortunately, they are—where, as we well know, it is possible for money to be able to make and be a susbtantial aid to alleviate the consequences of the breakdown, I believe that the law has no right to abdicate and say that this is too complicated or too difficult.
One of the objections which, I have noted, were adumbrated by the Law Commissioners to this limited retention which is claimed for damages founded upon proof that a third party contributed to the breakdown of the marriage is that it would be illogical—illogical, it has been suggested, because marriages can be broken, it is said, not only by lovers and mistresses, but by mothers-in-law. Indeed, the Law Commissioners, being particularly ingenious, went on to suggest that marriage could

be broken by familiar but impotent wealthy interlopers, or that a marriage could be broken even by an exclusive religious sect which persuades a wife to leave her husband.
All that is quite true, although some might find the deployment of such arguments a little extravagant. Because, however, the law cannot provide for every nuance of human behaviour, that cannot mean that it should provide for none. It is surely a poor argument if the argument is that it is illogical and untidy. It is a poor argument indeed that children should suffer unnecessary financial deprivation to ensure that tidy and obsessional lawyers are not upset.
In divorce proceedings, we all know that there is certainly no novelty in restricting damages to where there is proof of adultery. Adultery is definable. It is capable of proof, and its commission with the knowledge by the participant that the other partner is a married spouse ensures that the new Clause could be used only against a wilful interloper reckless of the consequences of his or her action to the children of a marriage.
Mothers-in-law may be unwitting nags and religious fanatics, they may be sincere and a little mad, but rich lovers and wealthy mistresses do not jump into marriage beds either absentmindedly or with any pure intentions.
11.30 a.m.
I do not believe that this House or the other place would wish to pass legislation which could be interpreted as weighted in favour of the wealthy lover or the rich mistress as against the financial needs of the children. Any argument that this new Clause would clog the courts with cases is absurd. The lawyers know that the number of cases claiming damages for adultery are few and, faced with the evidential needs laid down within the new Clause in subsection (3)(a), (b) and (c) such claims for damages would be very much fewer.
If the Clause is accepted it would apply only where there are children of the marriage. I accept that probably the number of children who would benefit as a result would be small, but the help that the law, as distinct from social work and social insurance, can give to children of a broken marriage is little enough. The commendable efforts by the Law Commission to review the arrangements for


the care and unbringing of such children, even though it had the aid of Mr. John Hall, of St. John's College, Cambridge, have been extraordinarily unrewarding.
Therefore, I ask the House to say that in this narrow sector, where there is a wealthy third party involved, the law can, and should, assist. I would suggest that in many cases it would be regarded as offensive if, in our desire to sweep away anachronisms embedded within the law we should with our eyes open undoubtedly do a grave injustice to children of a broken marriage.

Mr. Speaker: Order. Before the hon. Gentleman sits down, does he wish to say a word about the other Amendments?

Mr. Abse: Yes, Sir. I am obliged. All the other Amendments are consequential and have been put in to make quite certain that we can tidy up the Bill if the original New Clause is acceptable to the House.

Mr. Julius Silverman: On a point of order. Three of the six Amendments are not purely consequential.

Mr. Speaker: Order. We will be discussing them now.

Mr. Silverman: On a point of order. This is not upon the merits. Three are not consequential.

Mr. Speaker: Order. The hon. Gentleman can make that point in debate.

Mr. Charles Doughty: I ask the House not to accept this new Clause. The Bill deals with a number of what might be called legal anomalies, breach of promise and matters of that sort which it is desired to sweep away. One of these anomalies is the action for damages for adultery in a divorce petition, a relic of the old days and actions for criminal conversation. I almost thought, listening to the hon. Member for Pontypool (Mr. Abse), that I was back in the days of that type of action. If this Clause was inserted in the Bill we would be abolishing actions for damages for adultery, on the one hand, and perpetuating them, on the other.
Although the hon. Member tried to confine his actions to that glorious pic-

ture so often portrayed in the halls of the theatre, where the rich seducer seduces the innocent young wife, the wording of this Clause applies to everyone. Anyone can say that the person who broke up the marriage by his or her intervention and adultery is a rich man, or woman, or ought to be, and, therefore, he or she will make a claim for damages. This House should not pass Acts of Parliament which abolish something, on one hand, and perpetuate it, on the other.
For that reason alone I ask the House not to accept the Clause. There are many other reasons. There is a good old saying that hard cases make bad law. I entirely agree with the hon. Member that it is a hard case when a rich adulterer, male or female, seduces a not-very-well-off husband or wife, but those are the romantic cases and the introduction of the leather-studded Rolls Royce does not carry the matter any further. If we alter the whole law to deal with the very few hard cases we would be responsible for making a bad law.
The damages are for the benefit of the children affected by the intervention, possibly, of another person into the marriage. As the Law Commission said, and as the hon. Member has accurately read out, there are so many other matters which can affect the break-up of a marriage. The rich adulterer and seducer may be only the last straw and may have very little responsibility at all, yet can find himself with a large claim in damages to be settled upon the children.
The children may not be aware of the fact at the time but, this being a cruel world, people will not hesitate to remind them that their education, their dowry, whatever it may be, is a result of their father's, or mother's, adultery on a previous occasion. I do not believe that children should have that particular advantage, if advantage it be, in future. Therefore, Clause 4 of the Bill, which abolishes such actions completely, should remain intact.
There are other points that I could raise, but those which I have dealt with are sufficient grounds for rejecting the new Clause. Combined, they are an even stronger argument and I hope that the House will reject the new Clause.

Mr. Silverman: As the hon. Member in charge of the Bill, perhaps I can say that the hon. Member for Pontypool (Mr. Abse) raised the same subject in Committee and that a great deal of sympathy was expressed for his objectve by hon. Members.
Although the Amendment then introduced was considered by me to be quite unacceptable for a number of reasons, technical and non-technical, I promised, in view of the feeling in Committee, that I would go into the matter seriously with the Law Commission to discover whether it was possible to draft an Amendment or new Clause which would remove the objections and would not create many more anomalies and difficulties than those which it was intended to remove.
I have done this. I have spent a considerable time examining the matter and have met the Law Commission and discussed the matter fully. As an experiment, the Commission produced a draft which would remove some of the objections, but having done so neither the Commission nor I regarded the outcome as satisfactory. We still believe that there are serious objections inherent in the proposal which cannot be removed. In the light of this, it was and still is the view of the Law Commission that the complete abolition of damages is the most desirable course. It would not, therefore, be right for me to introduce a proposal on those lines.
It was suggested that this was a matter for the House of Commons to decide, as a matter of social policy. It will be remembered that in the Commission's reports on the abolition of damages it is said that it would prefer—and believes that that is a desirable objective—a complete abolition of this anachronism. If it concedes that this involves not only principles of law, but important matters of social policy, then such matters should be ultimately decided by this House. Therefore, provided the House did not think it a matter of social policy, it suggested an alternative for the complete abolition.
The same applies to the new Clause. The Commission believes, as I do, that it would not be well to accept the Clause for reasons which have been so well stated. It is ultimately the responsibility of the House to decide on matters of

social policy. If the House felt differently from the Law Commission, it should discuss the matter, as it is doing, and come to a decision.
Accordingly, I approached my hon. Friend the Member for Pontypool, told him the position, and suggested that he should table a new Clause for discussion today to enable the arguments on both sides to be deployed and for the House to reach a decision. My hon. Friend has had valuable technical assistance in tabling his Clause, which does not have what I would call the technical objections of the first new Clause tabled in Committee. None the less, there are objections inherent in it, and they should be outlined.
While the new Clause proposes equality between men and women in their rights of action by giving this remedy to wives as well as to husbands—at present, a husband can sue for damages for adultery, but a wife cannot—the Commission suggested that if there were any retention of damages in any form the rights given to either side should be equal. The anomaly between husband and wife is a reflection on the barbarous nature of the remedy itself, which was based on the husband owning a wife as a sort of chattel and therefore being able to obtain damages for the defilement of his property. This is why, for so many years, equality under the law has never been given to the wife in seeking the same remedy.
On the other hand, if we provide equality for men and women, we must face the practical position that it might considerably increase the number of cases coming before the courts, and no one can tell to what extent. It has been suggested—I do not know whether it is right or wrong—that in these matters women are more vindictive than men and that if they were deprived of a husband they might, sometimes with justifiably strong feelings, decide to bring the matter to court. It is felt that there might be a multiplication of cases of this kind.
It is true that the Clause is directed at a very limited and restricted target—the wealthy adulterer who breaks up the marriage of a person in modest circumstances. But, by its very nature, however the Clause is drafted, it is bound to affect a much wider target. Even


though the prospects of success in a case of this character may be small, they do not prevent husbands or wives, and particularly wives, from bringing cases to court and thus increasing the burden imposed on the courts.

Mr. Abse: Is it not a fact that actions for damages for adultery can already be brought in innumerable cases, but that as a result of legal advice they are rarely brought? Why should my hon. Friend therefore assume that the number of cases would be multiplied?

11.45 a.m.

Mr. Silverman: The different factor introduced by the Clause, which is right in principle, is that women would be able to do that. Nobody can tell what the effect of multiplying the number of causes would be. This is the essential difference. I agree that claims for damages for adultery are a very small fraction of the number of petitions brought.
The divorce law reform which comes into operation on 1st January next year revolutionises the law of divorce. My hon. Friend the Member for Pontypool played a distinguished part in getting the Act on the Statute Book. Prior to it, a divorce petition was based exclusively on the matrimonial offence, with one exception—adultery, desertion, cruelty, and the like. With the coming into operation of the new Act, that will cease to be the case, and the granting of a divorce will be based exclusively on the breakdown of marriage.
Matters relating to adultery are merely incidents in the breakdown, one of the items associated with it, but the essential test is whether the marriage has broken down. I need not set out all the reasons for that; they were set out very well by my hon. Friend the Member for Pontypool during the discussion on his Measure and on other occasions.
It is, however, the Law Commission's view—and it seems to me common sense—that under the new law the remedy which was attached to a matrimonial offence would be completely inappropriate when the court was investigating the breakdown of a marriage, with complicated personal relationships which

have resulted in the breakdown. My hon. Friend the Member for Pontypool agreed with the general principle today and also in Committee. The Clause, while it is intended primarily to benefit the children of the marriage who suffer financial hardship because of the divorce, is a retention of the form of damages which existed under earlier legislation and, whatever my hon. Friend's objectives, it is inappropriate to the new Divorce Reform Act.
As hon. Members know, adultery in most cases is not the cause but a symptom of the breakdown of the marriage. When a petition alleges a particular act of adultery as contributing to the breakdown, it will presumably be open to the corespondent, or however he may be described under the rules of the new Act, to contest this and to bring into issue all the relationships of husband and wife to show that his adultery was not a serious contributing factor in the breakdown. Obviously, this will result in many bitter wrangles in court and a great deal of dirty linen being washed.
It will not be easy for the court to decide whether or to what extent the adultery was a contributing factor. Damages are awarded now because adultery has taken place. My hon. Friend the Member for Pontypool said that adultery is easy to describe and to define, but to decide to what extent adultery is a contributing factor to the breakdown of the marriage will be extremely difficult for the court. Under the present law, once adultery is proven, there is an automatic right to damages. This does not face the court with the same problems.
Suppose that a wife or husband has committed adultery with a number of people. Obviously, if the wife or husband seeks this financial remedy, he or she will proceed against the wealthiest of the adulterers because he or she is the most likely to be able to make the lump sum settlement which the Clause proposes. However, how will the court be able to decide whether his adultery, in particular, has been a contributing factor of any seriousness to the breakdown of the marriage?
The Clause is aimed at a very small target. The hon. Member for Pontypool has described them as the lascivious accountant, the promiscuous lawyer, the wealthy man who cruises outside


factory gates. That might be all right for "Peg's Paper" but, in practical life, it hardly ever occurs. That is my knowledge and information, not only from my experience but from that of others. But the Clause, intended to meet this small objective, would hit a very much wider target, and that is the trouble. It would also be likely to multiply the number of petitions embracing this scheme, impose additional burdens on the courts and have little advantageous social consequence.
The Clause is, I understand, based upon the Report of the Gorrell Commission of many years ago—I think that it was published in 1912—when there were entirely different social considerations on the whole question of marriage and divorce. Just to meet a comparatively small number of cases it would be unwise to introduce a Clause which would create far more anomalies and problems than it would solve.
There is always danger of this House being accused of permissiveness, of providing no deterrents for the wealthy seducer. This is one of the risks which we have to face. We are criticised in our day-to-day work anyway, and we cannot help that. But, bearing in mind the merits of the Clause, I suggest that, although it might do good in a minute number of cases, it would do a great deal of harm in many others. The view of the Law Commission that damages should be entirely abolished is by far the best suggestion, and I commend it to my hon. Friend.

Mr. Speaker: Will the hon. Member for Birmingham, Aston (Mr. Julius Silverman), who is in charge of the Bill, say something about the Amendments that we are discussing?

Mr. Silverman: I think that three of them are consequential, Mr. Speaker.

Mr. Speaker: Perhaps the hon. Gentleman will intervene on this point a little later.

Mr. Silverman: Perhaps I can do so when the Amendments are dealt with, Mr. Speaker.

Mr. Speaker: When he wishes to do so, the hon. Gentleman may intervene again.

Mr. Eric Ogden: The debate is more like reading articles in Sunday newspapers than our normal proceedings. My hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman) and the hon. and learned Member for Surrey, East (Mr. Doughty) referred to what some people outside the House may regard as our attitude to the permissive society. They made that point quite clear in the Committee proceedings. But these are matters which should be considered on merit, regardless of what people outside may or may not believe we are doing at any particular time.
I think that the new Clause is too long, too complicated and too obscure. For those reasons, it should be rejected. My hon. Friend the Member for Pontypool (Mr. Abse) has proved, not on this occasion but on many others, that he has concern not only for his constituents but for all those who are socially deprived. He has given full support to social legislation more human, more acceptable and more realistic.
On this occasion, my hon. Friend is perhaps speaking with two voices. He speaks as a practical and realistic man supporting the rights of women to equal status and to equal citizenship rights. Yet he may also be the last of the great Welsh romantics in believing that women and children, particularly women, still need the law's protection and help more than men need that protection. That is his dilemma. His proposals in the Clause will not help. They are based partly on this dual personality which he has shown.
We most certainly want equal rights and equal respect for women, but in the relationship between law and marriage the law should support and be a protection to both sides. Marriages thrive and will continue to thrive more in spite of the details of the law than because of the law. The less the law has to do with marriage itself, the better it is both for marriage and everything else. That applies also to solicitors and barristers. As long as major support by the law is present, the Clause would not help.
There are other considerations which might protect children and their rights that my hon. Friend has not mentioned. He gave a number of permutations of hard cases as a target at which the new


Clause would be aimed. He spoke rather grandly of leather-seated Rolls-Royces. I do not know what happens in the Welsh valleys if Rolls-Royces go cruising around. My hon. Friend the Member for Aston also spoke of the philanderer cruising outside factory gates. All I can say that someone cruising about factory gates in a Rolls-Royce on Merseyside, or in Oldham, would get "a flea in his ear".
In dealing with the welfare of children, my hon. Friend the Member for Pontypool seemed to be confirming that simply because a marriage has been ended by divorce that does not mean the end of the responsibility of the parents for the children, whether they be the parents given the guardianship and charge of the children or those who have gone off and remarried. He says that the parent who has been guilty of assisting in the breakdown of the marriage should provide a lump sum. What happens to the spouse who has gone off with that person? Has he or she no influence or say in regard to the welfare of the children of the marriage? I do not think that the Clause would help in that regard.

Mr. Abse: I am sure that my hon. Friend does not want to do an injustice to me. If he had read the Clause, he would have seen that only where financial hardship could not be remedied by having an order against the spouse would the Clause come into operation.

Mr. Ogden: My hon. Friend perhaps does me an injustice by saying "If I had read the Clause". I have read it at length. The more I read it, the less I understand it. Perhaps that is a fault of my education. He has more experience of legal phraseology, but I have tried to understand it. The point he makes suggests that perhaps he does not understand the point I am trying to make.
Let us take the case of a family—man, wife and two children. Let us assume that the wife goes off and marries again. The Clause would enable the adulterer, the respondent, to be sued for a sum of money. What happens to the responsibility of the mother? Has she no responsibility for the children? Cannot she influence the person with whom she has gone off to help provide for

them? This is where rights and responsibilities come into the picture.
I accept my hon. Friend's intentions but I do not think that they would do good in practice or good in principle, and I hope that the House will not accept the new Clause.

12 noon

The Solicitor-General (Sir Arthur Irvine): My hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman), who has undertaken the sponsorship of the Bill, has given a fair account of the state of things revealed on this point in Standing Committee. It is fortunate that the House should have the opportunity, in a debate on this new Clause, to consider the merits of an issue of this scale and importance.
The Clause, in my view, is free of some of the technical deficiencies which we thought existed in the new Clause which the Committee had to consider. My hon. Friend the Member for Aston has fully, as I am sure my hon. Friend the Member for Pontypool (Mr. Abse) will agree, implemented the undertaking that he gave to go into this matter with the greatest care. I think that he did that taking into account, as I did, the disposition of opinion manifested by hon. Members in Committee. So we are now able to consider this point in the context of expert draftsmanship in the proposed new Clause. That makes it possible for those of us who were critical of the proposal to consider whether that draftsmanship has achieved a significant result in removing the objections which some of us thought applied to the principle of the new Clause.
I was happy to agree on this occasion with what was said about this by the hon. and learned Member for Surrey, East (Mr. Doughty). I also found extremely persuasive the argument of my hon. Friend the Member for Aston. But the substantial objections to my hon. Friend's original new Clause are still present. I think that if this kind of provision found its way on to the Statute Book we would, in effect and in practice, be reintroducing the punitive element and the process of inquisition into these matters. It may be in only a limited sphere, but we should still be introducing, as a matter of principle, the punitive and inquisition element.
Many people thought that in the current process of divorce law reform generally we were getting away from that. It is implicit in the concept of breakdown of marriage taking the place of the concept of matrimonial offence—whether that basic difference is right or wrong is not for me to argue here—that if the concept of breakdown is to prevail in future it is surely desirable that, in particular instances, matters should not arise which have the character, effects and disadvantages that were thought were attracted by the law as it was.
My hon. Friend the Member for Pontypool would, I am sure, be the first to agree broadly with that proposition. That is what I would expect of him. But he thinks that in this instance there is a particular hardship affecting the children of a marriage which has broken down which warrants a remedy. That is the issue before the House. In many respects I see the force of my hon. Friend's argument, but I hold the view that his proposal, even now that it is expressed in terms of expert draftsmanship, has disadvantages which outweigh the possible advantages that he has in mind.
If the Clause were adopted by the House, the courts would have to consider, in cases to which the Clause would apply, who caused the breakdown of the marriage—not just the question whether there has been a breakdown. In my view, this is an important modification of the new divorce law. The punitive element which we thought we had removed would not only be reintroduced, but reintroduced somewhat anomalously.
For example, under the Clause—this also applies to the new Clause that we considered in Committee—the corespondent will have to be aware, before the liability occurs, of the existence of a marriage. I believe that that has evidential difficulties attaching to it. That anomaly, in a way, has survived from the earlier law, but it is a rather serious matter.
Although the lump sum is intended for the child's benefit, my hon. Friend's proposal would raise procedural difficulties about any proceeding which would have to follow. It is a remedy which, as I understand, can only be initiated by a parent. Despite efforts

that have been made, to my knowledge, to overcome these difficulties and disadvantages, it will still not be possible to avoid the difficulty that the entitlement of the children will depend on circumstances entirely outside their control. They cannot decide whether divorce proceedings should be instituted or whether the petitioner or the respondent cares sufficiently about them to make a claim.
These are real difficulties which the Clause cannot be said to overcome. In my view, it is anomalous in imposing liability to compensate the children on only one type of marriage breaker—the adulterer. Others—the mother-in-law, the enticer, and so forth—will still go scot-free. I see the point that if it is undesirable that one or two classes of offender should go scot-free, that does not make it desirable that another should. On the other hand, I would find it difficult to defend that anomaly.
I have tried throughout my consideration to consider it fairly and objectively, recognising the objectives which my hon. Friend the Member for Pontypool has in mind, but it seems that this remedy might open the way to some very undesirable proceedings indeed. The House will appreciate that if an adulterer is under the threat or danger of having to pay a lump sum, he will be very anxious to show—and in many cases may not have great difficulty in showing—that it was not his adultery which caused the breakdown, but that there were other adulteries which had contributed to that event.
I ask the House to consider how very undesirable would be the consequences of that situation. One would get into the very worst type of entanglement. In it, and as a consequence of it, I should have thought that over all the children would suffer as acutely as anyone else.
For these reasons, and because this matter has now, I am glad to say, been fully ventilated and expert consideration has been given to the language which might most appropriately meet my hon. Friend's purpose—despite all that—I hope that the decision of the House will be to reject the new Clause.

Mr. Julius Silverman: It may now be for the convenience of the House if I intervene to deal with Amendments Nos. 2 to 6 and explain the position, so far


as I understand it, concerning them. Amendments Nos. 4 and 6 are purely consequential. Those are the Amendments to which the name of my hon. Friend the Member for Pontypool (Mr. Abse) is alone attached. Amendment No. 4 simply provides that an order of this character, if it comes into operation, could be operated in Scotland, Wales or Northern Ireland. Therefore, it is purely consequential on the new Clause. Amendment No. 6 simply alters the Title because the Title at present does not cover the objective which my hon. Friend has in mind.
Amendment No. 2, which seeks to leave out the word "any", means in substance that proceedings could not be taken in any court not merely, as at present, in the High Court or a divorce court in appropriate circumstances. It might have some significance if the rules were altered.
Amendment No. 3 affects the date of the coming into operation of the Act. This, therefore, is a matter of some substance. It is obvious that if the new Clause were passed it would be absolutely essential that it should not come into operation until the operation of the new Measure dealing with family provisions, which is intended to come into operation on 1st January next year. The Divorce Law Reform Act is to come into operation at the same time. That would be an absolutely essential consequence.
Having considered the matter, it is my view—totally apart from the question of the new Clause—that it is desirable for this Bill to come into operation at the same time as those two other Measures, on 1st January next. Basically, the abolition of the ground of adultery is based on the new conception of divorce as it exists under the new Divorce Law Reform Act. This is an amendment of substance which would bring back the date of operation from that of a month after the Act is passed.
Amendment No. 5 is purely drafting. It applies to the Schedules of Acts being repealed. Apart from drafting, it has no significance.

12.15 p.m.

Mr. Ian Percival: Usually it is my purpose when rising to disagree with something that has been said by the Solicitor-General. Happily, on this occa-

sion, I have the opposite purpose for I agree with what he said. I thought my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) gave with a great economy of words three very good reasons, each of which, as he said, was sufficient reason for at least having another look at what we are trying to do and all three of which together form very cogent reasons for not giving the new Clause a Second Reading. That was added to by the hon. Member for Birmingham, Aston (Mr. Julius Silverman) and the hon. Member for Liverpool, West Derby (Mr. Ogden).
I want to say a word on the penultimate reason mentioned by the Solicitor-General. I can see the logic of saying that if a man or woman so acts as to deprive a child of that child's mother or father, the person who so acted should be liable to an action for damages on behalf of the child. If one were putting forward a general proposition like that, one could at least see the logic of it, but it would be retaining the action we are abolishing in Clause 5(a) and making it available on behalf of children rather than on behalf of spouses. I merely say that I see the logic of it: I have no desire to see it done.
There are far too many difficulties involved in applying it, and in any event I think most of us would agree that there is something repugnant in the concept. It is trying to translate affection and the kind of services parents render to their children into terms of money. What seems most repugnant about the new Clause is that, rather than trying to provide a general remedy of the kind to which I have just referred, it would be instituting such a remedy in circumstances which, perhaps, are the most repugnant of all, making the liability for damages dependent on the committing of adultery. There is no rhyme nor reason in that. As the Solicitor-General said, it would leave all sorts of difficulties to be dealt with by the court in dealing with such a claim.
It has not even the merit of being simple. If one could say that this would be a simple action in those circumstances, there would be a case for singling it out. Then I should see the point; but here there would be very substantial difficulties of the kind to which the Solicitor-General referred.
I hope, therefore, that the House will not give a Second Reading to the new Clause.

Mr. Abse: I have listened to the arguments which have been adumbrated. I do not pretend that they have not been formidable, although they leave me unpersuaded. I am glad that my hon. Friend who is undertaking the heavy duty of steering this Bill has pointed out the scrupulous care with which he has consulted the Law Commissioners to make certain that the social policy involved in this Clause should be discussed in this House in the appropriate terms.
I sometimes think that the great danger is that we erect an excessive number of difficulties, real as they may be, whenever we may come to questions within the divorce law generally that particularly affect children. It is a constant argument which has been used, as it has been used today, that the complications are excessive if an endeavour is being made to protect the interests of those, as here, who can be innocently affected. I still believe and maintain that the House is losing an opportunity of extending a helping hand to little ones when it is within the capacity of the House so to do. It is because of that that—at least formally—I press the Amendment.

Question put and negatived.

Clause 3

GIFTS BETWEEN ENGAGED COUPLES

Mr. Julius Silverman: I beg to move Amendment No. 1, in page 2, line 23, at end add—
(2) the gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.
The Amendment arises from one moved in Committee by my hon. Friend the Member for Pontypool (Mr. Abse) and deals with the question of engagement rings. The present rule with regard to an engagement ring—this has aroused much more public interest than any other part of the Bill—is that, according to a decision of the courts taken in 1917—Jacobs v. Davis—an engagement ring is a conditional gift which is presumed to be conditional upon the marriage. This

means that, if the marriage does not take place, the ring, being a conditional gift, is returnable.
In a later case—Cohen v. Sellers—it was held that on the termination of an engagement a conditional gift may not be recovered if the person responsible for terminating an engagement is the man. This applies to engagement rings as having been decided to be conditional gifts.
The object of the Amendment moved in Committee was, in substance, to reverse what would occur if the Clause came into operation; because the Clause removes the bar to the recovery of a conditional gift which is imposed if the donor is responsible for the termination of an engagement. My hon. Friend chose to reverse this and revert to what would be the position under Jacobs v. Davis. The major objection to the Amendment moved in Committee, although it received a certain amount of sympathy, was that Cohen v. Sellers involved an argument of who jilted whom; and this we considered to be objectionable.
If breach of promise cases must go—there are very powerful arguments advanced in the Commission's report for their going—they should not be revived under the pretext of discussing who should get an engagement ring. What ever the proposal which came before the House, it was the feeling of most members of the Committee that there should be a decision one way or another: either the ring should go back or it should not go back, but it should not in any sense depend upon a discussion as to who broke off the engagement, a matter which in any event it is very difficult for the court to decide in many cases. The decision may have been taken by the man due to an intolerable course of conduct by the woman. This was the general feeling of the Committee, as it is my feeling and that of the Law Commission.
To meet this situation, I drafted the Amendment, which reverses the presumption in the case of Jacobs v. Davis and says in substance that an engagement ring is not a conditional gift. In doing this, I have not merely considered this Amendment. I have discussed the matter with Members of the House and with many people from different walks of life.


The almost universal reaction is that they would have thought that an engagement ring is not a conditional gift but one given absolutely. I should have thought that this was common sense.
One legal acquaintance of mine wrote to his wise mother as the fountain source of his knowledge. What she said was very interesting. She said that she thought that no decent man would want to ask for his ring back if the engagement was broken and no decent woman would want to keep the ring if the engagement was broken, but that in substance an engagement ring was not a conditional gift but an absolute one.
The Amendment therefore reverses the presumption. Unless the contrary is shown by the man who has given the ring, it shall be presumed that the ring is an absolute gift. This is the view of most people. It is common sense. There may be circumstances where the gift is a conditional one. One or two have been mentioned. For instance, a ring may be a family heirloom, and in such circumstances it is obvious that the gift was intended to be conditional upon marriage and to be returnable in the event of the marriage not taking place. These are matters which would be decided by the courts upon the evidence. The one point which would not arise is who broke off the engagement, how it came to an end, and who jilted whom.
One argument which was advanced in Committee against such a proposition as that which I now advance and, indeed, against the original proposition of my hon. Friend the Member for Pontypool, was—would not this provide a licence and charter for the gold-digger woman who would simply get herself engaged, get a valuable ring, proceed to break off the engagement, and then go to the next man and repeat the process?
I do not regard this argument very seriously. If the woman who is engaged is that sort of woman, the man is getting rid of her very cheaply if it is only the price of an engagement ring. Therefore, there is a solid argument in favour of the Amendment. It complies with what the feelings of the members of the Committee were, and I am sure that it would also comply with the feelings of the House.

12.30 p.m.

Mr. Abse: I am grateful to my hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman) for having yielded to my request that we should not have a Bill, as we once did, whereby it was possible for a faithless lover who promised marriage to break his promise and, if he wished, to snatch back the engagement ring.
My hon. Friend is quite right in saying that this matter has aroused a great deal of public interest. It is quite clear to me from the avalanche of mail that he received as a consequence of the issue being publicly ventilated that there is a great amount of healthy concern that the act of betrothal should be dealt with in the way originally suggested. This Amendment helps to ensure that no man can lightly place an engagement ring on a woman's finger. It will now mean that the chances of a man ever obtaining his ring back, except by the wish of his fiancée, will be very slight indeed.
My hon. Friend the Member for Liverpool, West Derby (Mr. Ogden) has accused me of some romanticism. I remain romantic enough to believe that this proposal will not mean that there will be any reduction in the total value of rings purchased. If, in a marginal number of cases, it causes hesitation before the ring is proffered, then so much the better, because such temperate and calculating wooers would best be frightened off before, rather than after, the engagement.
I agree that the cynics may say that there are risks of women entering into a succession of engagements in order to obtain a succession rings, but I am glad that my hon. Friend the Member for Aston has not pursued the misogyny that he expressed previously when he seemed to imagine that most women were in danger of becoming extraordinarily predatory, and that he now takes a much more realistic view.

Mr. Julius Silverman: I do not accept that for a moment. I did not say it. I would not dream of saying it.

Mr. Abse: My hon. Friend seemed to imagine that women are likely to start actions more readily than men—something which is a purely subjective impression and is, I am sure, wrong.
I am glad that my hon. Friend accepts that the objection—although is should have been raised so that it could be considered in Committee—is very unlikely and fanciful. I am certain that in the overwhelming majority of cases of broken engagements, a woman, to preserve her dignity, would hand the ring back. But I have always insisted that the choice should be hers and should be voluntary. To have it otherwise would mean that the law would be more likely to act as an exacerbation in a painful situation rather than, as it will now, a social lubricant.
Although my hon. Friend the Member for Aston has not mentioned it, I have yielded to his private persuasions in his concern for heirlooms. One of the circumstances in which it could be implied that a gift was not an absolute gift would be a case in which a man has handed over an heirloom. Perhaps there are still some ducal heirlooms, and perhaps there is still a world in which some impetuous pin-headed lords proffer priceless inherited jewels to chorus girls, and, if they do exist, I take the point. I can assure my hon. Friend that, if there is such a world, Pontypool—and I am sure Liverpool, too—is quite indifferent to it.
I see the force of the hon. Gentleman's argument in taking into account the fact that the ring proffered may have been worn by a man's great-grandmother or his mother, and the court, by noting this, should in some circumstances be able to conclude properly that the gift in those circumstances was impliedly conditional. I regard the response made by the hon. Member to the request that I and others made in Committee as a generous one, and I hope that this sensible Amendment will be accepted.

Mr. Ogden: I hope the Amendment will not be accepted. Earlier the new Clause proposed by my hon. Friend the Member for Pontypool (Mr. Abse) was opposed by my hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman), and I agreed with that opposition. There is now a consensus between the two, and I like this Amendment none the more for that.
An engagement ring was a symbol of a betrothal, of trust and confidence between two persons, long before it

became a prestige symbol or an outward sign of a contract. If that contract should be broken, if that trust, confidence and love are to be broken by the breaking-off of the engagement, the way in which the engagement ring goes—whether it stays with one person or another person—is of much less importance than all the other considerations. If we are to discuss one part of the property—which may be of small or large financial value—which is exchanged between the parties to the contract, we should also discuss what happens to the other pieces of property which were acquired because of the contract. What happens to the house? What happens to the furniture or the fittings? What happens to the bottom drawer? Does one have to consider who bought which and who bought what? That is one of the reasons why I do not like this Amendment.
I like the first part of the Amendment, which is short, concise and quite clear:
the gift of an engagement ring shall be presumed to be an absolute gift".
If there were a full stop at that point, as there was originally, I would give this Amendment my wholehearted support. But then we have the second part of the Amendment:
this presumption may be rebutted by proving"—
I do not know how it will be proved—
that the ring was given on the condition, express or implied"—
that should perhaps read "expressed or implied".
Let us imagine a situation in which a young man asks a young woman to marry him. This may happen at a railway station.

Mrs. Renée Short: That is not a very romantic place.

Mr. Ogden: Railway stations can be very romantic places. Imagine a boy asking a girl to marry him. Perhaps he has the ring available. Incidentally, how they always seem to have the right size amazes me. He says, "May I slip this ring on your finger? Would you sign this form to indemnify me before the marriage goes through, in case anything goes wrong?" I submit that that would not be a very realistic proof.
Then we come to the latter part of the Amendment:
that it should be returned if the marriage did not take place for any reason.
Why "any reason"? If it did not take place for any reason, there is no reason to have "for any reason" in the Amendment.

Mr. Julius Silverman: The words "for any reason" simply mean in this case however the engagement was broken off, whoever broke it off. Their object is to prevent a discussion on who jilted whom.

Mr. Ogden: That object is acceptable, but I still think that exactly the same result would be achieved if the Amendment were to end with the words
if the marriage did not take place".
That would mean, "did not take place for any reason".
However, that is a debating point of less importance. My main point is that the engagement ring has been elevated to an importance greater than its worth; it has been given a false importance. The main thing that we should be concerned about is the breakdown of the engagement, not how particular pieces of property may be disposed of. I do not like the Amendment, although it will presumably be accepted.

Mrs. Renée Short: The Committee considering the Bill was a curious one, in that it was composed entirely of male members. It always surprises me that when in the House we do a great deal of work on the condition of women, if I may use that expression in the broadest sense, we do not think that it is necessary even to have just one statutory woman on the Committee so that the women's point of view might be heard.
I am not putting a particularly militant feminist point of view today—

Mr. Ogden: But my hon. Friend is wearing the trousers.

Mr. Abse: I made the point in Committee that by the end I had begun to feel that I was the only feminist serving on it.

Mrs. Short: My hon. Friend has taken the words out of my mouth.
Generally, we can be certain if he is on a Committee that, with his great

knowledge of female psychology, he will put the woman's point of view. I can think of only one occasion when my hon. Friend has erred in this direction, and that was when he and I served on the Committee considering the Bill for the reform of the abortion law. I can see that you are beginning to look agitated, Mr. Speaker, so I will not pursue that line. If I were to do so, I would simply say that my hon. Friend and I did not then agree, and I think that his insight into female psychology was perhaps not as acute as it normally is.

Mr. Speaker: Order. We must get back to the engagement ring.

Mrs. Short: My hon. Friend really came up to expectations on the Committee considering the Bill. He is absolutely right to say that an engagement ring is a gift, full stop, with no conditions attached.
From time to time my hon. Friend gives us some interesting and highly-coloured descriptions of what life is like in the Welsh valleys. We had examples of some parts of Britain—I am not sure whether they were in Wales—where rather odd symbols of troth are given, such as bent sixpences. I think that we would have no hesitation in knowing what to do with such symbols, but an engagement ring is something very special. It is a landmark in a girl's life when she receives one, whether it is the first or perhaps one of a succession. It is also a landmark in the life of the young man who gives the ring, because it shows that he has a degree of seriousness in the particular girl, that he regards himself at least for the time being as her plighted troth, and that the intention is that the marriage shall be carried out and eventually consummated in the normal way.
It is possible to receive an engagement ring after marriage and not before. I was not able to receive an engagement ring before marriage simply because my fiancé and I could not afford it. We had both been students, and when we decided that we were meant for each other it was a question of whether we could afford to buy furniture for our flat or an engagement ring. I decided, very nobly, I think, and probably very sensibly, to defer buying the engagement ring to buy the furniture. This meant


that probably I eventually got a very much better ring than by fiancé could have afforded before we married, so I think that I got a better deal in the end. A ring given after marriage as an engagement token is no less precious to the recipient.
Rings are given in very different circumstances. In Committee, the hon. Member for Blackpool, North (Mr. Miscampbell) described how he pushed his engagement ring to his fiancé across the teatable at Fuller's, in Liverpool, one afternoon, and said that she took a rather dim view of this unspectacular offer of the ring.
In many cases the young couple visit several jewellers' shops over a period of time to decide which ring they will buy. Having decided on the financial range in which they will operate, they take quite a long time over choosing it together. It must be a marvellous experience for a girl to be able to choose and not just to have to wear any old ring her fiancé decides to give her, whether across a café table or elsewhere. It is perhaps even more of a personal thing if she has been able to select the ring that she would particularly like to wear. But that makes it an even more bitter situation if the engagement is broken and she is faced with the question of whether to send the ring back or to keep it.
Perhaps because I am a woman, I come down firmly on the side of those who say that the ring should be hers. As my hon. Friend the Member for Pontypool said in Committee, she may decide that she wants to do something rather drastic with it after it can no longer sit on the third finger of her left hand as the symbol of her engagement to the man of her choice. He said that she might even want to chuck it in the river.
I believe that if she is jilted she is right to do what she likes with the ring—chuck it in the river, or perhaps sell it. She might feel that she particularly wants to keep it because it is a memento of a period of her life. Not all partings take place in an immense amount of bitterness and unhappiness. They may leave something sweet at the end, something that is to be remembered and valued.
Into the romantic atmosphere created in Committee by my hon. Friend the

Member for Pontypool, bless him, the cold voice of male logic was introduced by my hon. Friend the Member for Bolton, West (Mr. Oakes), who warned of the machinations of the female gold-digger—a phrase I have not heard for a long time. I think that it dates back to the 1920s. We remember those lush Hollywood musical films. He warned about the gold-digger who acquires a ring, perhaps a very expensive one—good luck to her—and then flagrantly breaks off the engagement and keeps the ring, and who may make this a sort of practice. Having pulled it off once she may think that it is a jolly good thing, and will find a succession of men in a position to buy her equally expensive rings.
This is not a very valid argument. The suggestion does not fit in with female psychology at all. Is it really within the bounds of possibility that one woman could find so many rich men to give her so many expensive rings? Maybe she can do it once, she might even get away with it twice, but this really is not a possibility.
As my hon. Friend has said, I think that if a man gets hooked with that sort of woman then it is really a cheap price to pay—even though he may have spent quite a lot of money on a nice engagement ring—to be rid of her and able to look with a clear conscience for a better sort of fiancée to provide him with a better life in the future.
One ought not to place too much weight on that. I would be very much happier, and here I agree with my hon. Friend the Member for Liverpool, West Derby (Mr. Ogden), if the Amendment finished at the words "absolute gift" and that the ring should be presumed to be an absolute gift. I can see the point about the family heirloom being handed over as an engagement ring and that if we said that the engagement ring was an absolute gift that would mean that the fiancé had no means of getting the family heirloom back into the family unless the Amendment continued as it does on the Notice Paper.
I should have hoped that in those circumstances, where it was obviously understood that this was the kind of gift which should remain in the family, to be handed down from generation to generation, that the girl would be


reasonable and would be willing perhaps to do something that she would not do in normal circumstances.
I do not support at all the idea put forward in Committee that there should be any question of taking the matter to court to decide who broke off the engagement and why and who, therefore, should be entitled to have the ring back or keep the ring. This Amendment, therefore, is an improvement on that. But as I said, I should be happier if the Amendment finished at the words "absolute gift".
This is something which is tremendously important to a girl or a woman who receives a ring. I think that we accept the fact that a ring is a gift and a gift is a gift. It is not something given conditionally, although I understand that that is the position at the moment, and that the Law Commission's report said that there is a presumption that engagement rings are conditional gifts. But it is certainly an improvement to decide that engagement rings should be absolute gifts, and that they should be kept by the fiancée in the circumstances.

Mr. Julius Silverman: If the new Amendment is not carried then the position will be that which my hon. Friend the Member for Pontypool (Mr. Abse) objected to—that a ring, being a conditional gift, would be returnable to the fiancé in every case whoever broke off the engagement, unless she were able to prove—and it is not an easy thing to prove under the circumstances—that the gift was given unconditionally. That would be the position. I think that that would be found objectionable by most hon. Members. That was the first point which I considered in presenting the Amendment.
The second point that I took into consideration—and it is a point on which everybody has concurred, including my hon. Friend the Member for Wolverhampton, North-East (Mrs. Renée Short)—is that whatever the position it should be a position which did not depend upon who broke off the engagement. I think that most hon. Members would agree with that, because otherwise this would merely revive the whole wrangle of a

breach of promise case in another form. Therefore, if that goes, one must decide one way or the other.
How to decide is basically a matter of ordinary common sense and the law should be based as far as possible on common sense, and this is the object of the Amendment. Common sense says, "What does the ordinary man intend when he gives an engagement ring to an ordinary woman?" That is the point I have had to consider. Not relying upon my own hunch in the matter I consulted as many people as possible and the general view was that notwithstanding what the case of Jacobs v. Davis has said, and what the High Court has said, the intention of a man in ordinary circumstances is that the gift should be given as a gift and that there is no question of conditions.
This being their view, it seems correct that this should be embodied in the law rather than the decision of a judge which was made 50 years or more ago and that this should be the law of the land and that, deciding what is conditional or unconditional, should be based on what the ordinary person thinks when he gives such a gift.
This was the basis of the Amendment. I concede that there are certain exceptions, although I think that they are very few. I mention the family heirloom as one. I am not talking about ducal arrangements. I am talking about people in Pontypool and Birmingham who may give, as my hon. Friend the Member for Pontypool has said, a mother's ring, or a grandmother's ring, which is valuable in the man's family and which a court may decide in those circumstances is a conditional gift from its nature. This is a matter for the court to decide in an individual case. I should have thought that based upon this there would be few arguments about the question of engagement rings. We have had this in the past and it has almost always been based on who jilted whom. Once one dismisses that from any action one can be sure that there will be few, if any, actions over engagement rings. This is decided once and for all by this Amendment, which I hope that the Government will accept it.

Amendment agreed to.

Clause 4

ABOLITION OF RIGHTS TO CLAIM DAMAGES FOR ADULTERY

Amendment No. 2 made: No. 2, in page 2, line 26, leave out 'the' and insert 'any'.—[Mr. Julius Silverman.]

Clause 7

CITATION, REPEAL, COMMENCEMENT AND EXTENT

Amendment made: No. 3, in page 3, line 44, leave out from 'force' to end of line 45 and insert 'on 1st January 1971'.—[Mr. Julius Silverman.]

Schedule

ENACTMENTS REPEALED

Amendment made: No. 5, in page 4, line 18, column 3, at end insert—
Section 46(2) so far as it applies for the interpretation of section 41(3) of that Act.—[Mr. Julius Silverman.]

12.58 p.m.

Mr. Julius Silverman: I beg to move, That the Bill be now read the Third time.
It is not always the practice to have a Third Reading debate on a Bill of this character, but, in the circumstances, the House will have in mind that when the Bill first came before us, on the initiative of my hon. Friend the Member for Bury and Radcliffe (Mr. Ensor), there was very little debate. My hon. Friend had been successful in the Ballot and he undertook to put the Bill through for the Law Commission. All of us regret that, because of his illness, he has been unable to pilot the Bill through. The duty has, therefore, fallen upon my shoulders.
The Bill initially came before the House rather late in the day, and only about 13 minutes were devoted to the Second Reading. There were but two contributions, so there was nothing really in the nature of a Second Reading debate. As the Bill involves certain important principles and changes in the law, it is proper that their nature and the reasons for them should be stated. Our decisions may be wise or unwise, but at least the public should not be

entitled to say that decisions as important as these have passed through the House of Commons without adequate discussion, or without discussion at all.
In Committee and on Report we have debated some of the issues involved, but several important matters have not been debated. Although there has been a great measure of unanimity on the general principles of the Bill, with opinions expressed on both sides free of any political considerations, it is important that the public should know what is being done and why. I shall, therefore, briefly outline some of the Bill's provisions.
Clause 1, which has had some discussion, provides:
An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall lie in England and Wales for breach of such an agreement".
In substance, this means the end of breach of promise cases. In the view of the Law Commission, and, I imagine, in the view of most hon. Members, the breach of promise action is an anachronism which cannot be justified in this day and age. Moreover, it is steadily disappearing from our courts; there are not many such cases nowadays, for various reasons.
The first reason advanced by the Law Commission for its recommendation, which is embodied in the Bill, is that the stability of marriage is so important that no persons ought to be persuaded by threat of an action to enter into a marriage which they would not otherwise undertake. In other words, people should marry because they retain their natural affection for one another. If that natural affection has gone, any pressure to persuade people to marry would be disastrous. In many cases it has been disastrous, for the consequences are a lingering resentment embittering the marriage which reacts upon the children, leading to wrangles at home, unhappy families, unhappy children, and probably delinquent children, too.
As a matter of public policy in consideration of the children likely to be born to such a marriage, it is quite wrong that any pressure should be brought to bear to persuade a man—or a woman, for that matter, since a


breach of promise action can apply both ways—to enter into a marriage relationship which he, or she, does not really want and which is not based upon the deep affection necessary to make a marriage a success.
That was the major reason, but there are others. It used to be thought a simple matter for the courts to decide who had terminated the agreement in the last event. In fact, it is sometimes extremely difficult to decide who is responsible for the termination of the agreement. It may be the man, or it may be the woman, who makes the final act. A woman might say, "Take your ring back", or the man might say that it is finished, but there might have been an intolerable course of conduct on the part of the other partner. Indeed, like marriage itself, engagement is such a complicated relationship between the two parties that it is extremely difficult, or virtually impossible, for a court to decide who is really responsible for terminating the agreement. Thirty or 40 years ago, it would have been regarded as fairly simple to say who made the final act, but we take a more sophisticated view of human relationships now.
In addition, the breach of promise action gives opportunity for gold-digging and actions of a blackmailing nature. I hope that my hon. Friend the Member for Pontypool (Mr. Abse) will not accuse me of being a misogynist when I say that. As he knows, these things do take place. I do not say that they are common, but they do take place, and breach of promise as a cause of action gives facility for them. It was thought, therefore, by the Law Commission that this cause of action should come to an end.
Another point is that an action for damages for breach of promise tends to give marriage the character of a commercial bargain, and this hardly accords with the modern view of marriage or the equality of the sexes. It was based upon social assumptions which are no longer valid. Incidentally, this is the spirit behind a large part of the Bill, that marriage and engagement are personal rather than contractual relationships, and one should not consider

them as being merely commercial bargains. This, also, was the view and recommendation of the Law Commission.
There is nothing new in the demand that the breach of promise action should go. In 1878 a Mr. Farrer Herschell introduced a Motion,
That in the opinion of the House, the action of breach of promise of marriage ought to be abolished except in cases where actual pecuniary loss has been incurred by reason of the promise".
Unfortunately, he made no progress.
Many hon. Members will be familiar with the case of "Bardell v. Pickwick", in which Charles Dickens lampooned the breach of promise action. Later, there was—I am sure that most hon. Members will have seen it—the Gilbert and Sullivan opera, "Trial by Jury", in which there is a somewhat savage lampooning of the court proceedings in relation to a breach of promise case—extremely enjoyable, but having all the ferocity of Gilbert at his best.
None the less, the breach of promise action has survived. More recently, my hon. Friend the Member for Brixton (Mr. Lipton)—I am glad that he has now arrived—put down a series of Questions about it. In 1955 he asked a Question. In April 1960, in February and November, 1962, and in December, 1964, my hon. Friend asked Questions about it. On the last occasion, he asked the Minister without Portfolio
whether he will introduce legislation to abolish actions for breach of promise
and the answer he received was:
No, Sir. Legislation on this subject would not be justified in the present state of Parliamentary business".—[OFFICIAL REPORT, 23rd December, 1970; Vol. 704, c. 1209.]
I feel that we can congratulate my hon. Friend the Member for Brixton that his perseverance and assiduity in asking Questions, for which he is so well known, has produced some fruit in this case. In a sense, he can be regarded as the putative father of this part of the Bill, the Law Commission being the mother, and myself being in the rôle of midwife. The time has come when this legal anachronism should go, and I am sure that I have the support of the House in that.
Clause 2 relates to the property of engaged couples. Frequently engaged couples, like man and wife, enter into


various property relationships. One of them may buy a house and the other may do some work in that house. The question then arises: how can those property relationships be decided without having a wrangle about who jilted whom?
The proposal by the Law Commission, embodied in the Bill, is that the provisions of Section 17 of the Married Woman's Property Act, 1882, and Section 7 of the Matrimonial Causes (Property and Maintenance) Act, 1958, which confer power on a judge of the High Court or the county court to settle disputes between husband and wife about property, shall apply to an engaged couple on the termination of an agreement in the way that they apply to a husband and wife in the event of a separation.
Over the years this legislation has worked well. It allows reasonable discretion to the court to make a decision on what is sensible and reasonable. This is the best solution to the problem, and this is the way that it is dealt with in the Bill. In such an event, the High Court or the county court—usually the county court—will decide which property belongs to whom and how the joint property shall be divided.
One point was raised on this matter in Committee, and an Amendment was incorporated in the Bill to provide that where both parties have contributed towards a particular project—it may be a business or a house which has been bought by the man, and the woman has done some work in it, or vice versa—the work and the contribution should be considered by the court in deciding what part of that property belongs to whom. This is fairest decision that can be arrived at in dealing with property in these circumstances.
Clause 3 deals with gifts between engaged couples. This matter was considered to some extent when we dealt with the engagement ring. The Clause provides:
A party to an agreement to marry who makes a gift of property to the other party to the agreement on the condition (express or implied) that it shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his having terminated the agreement.
This again prevents wrangles as to who jilted whom.
Under the rule in Cohen v. Seller, conditional property was not returnable to the party who broke off the engagement. I have pointed out that it is sometimes difficult to decide who is responsible for breaking off an engagement. This Clause alters that situation. It provides that a conditional gift is returnable. A man might buy a house and put it in the name of his fiancée. It would obviously be extremely bad if he could not get back that house. This kind of matter should be resolved without deciding who jilted whom.
The argument applying to the other financial pressures placed upon a man to embark upon a marriage which he does not want applies equally to this Clause.
I now turn to a matter which has not been in dispute in this House, although it may be a subject for argument—namely, the problem of damages for adultery. The hon. and learned Member for Surrey, East (Mr. Doughty) dealt with this to some extent earlier. The view of the Law Commission was that with the Family Law Reform Act coming in, it would be inappropriate to retain damages for adultery.
In the old days—it is still the position today until the new Act comes into operation—divorce was based upon a legal anachronism—namely, matrimonial misdemeanour: when one party commits a matrimonial misdemeanour, the other is entitled to divorce. This is so whether it is adultery, desertion or cruelty. I believe that the only exception is divorce on the ground of mental illness. Otherwise, divorce is based upon a matrimonial misdemeanour. This oversimplifies the relationships between human beings, which are not like that at all. It is not a question of one saint and one sinner. It is probably an interplay of circumstances. Sometimes the person most responsible for the breakdown is not regarded as the one who has committed the misdemeanour.
Human relationships are so complicated that we cannot continue on that basis. Therefore, the new law provides that the basis for divorce in future shall be on breakdown of the marriage. Has the marriage broken down? Are the parties not living together? Are they in such circumstances that they cannot be expected to live together? This is now the major basis. In this respect, adultery


is only evidential. In these circumstances, quite apart from other considerations, it would be anomalous to retain damages for adultery.
Damages for adultery are not so important in many cases coming before the courts today. As my hon. Friend the Member for Pontypool pointed out, little more than 4 per cent. of petitions involve a claim for damages. The amount given in most cases is small. In well over one-third of such cases the amount is £250 or less. In the others it is less than £500. There is a suspicion that in a number of cases—a large number in this category are legally aided—damages may be given instead of costs. It is difficult to verify to what extent this is correct, but it is not an important consideration in the law relating to divorce. It is an anachronism, because the whole concept of damages for adultery is now out of date.
The House will remember that damages for adultery are given only to the man, not to the woman. They are based upon the old feudal concept that the man owned his wife like a chattel. Therefore, if somebody committed adultery with a man's wife, he defiled that property and the husband was entitled to compensation for such defilement. Such a concept is entirely out of date today. Therefore, it is anachronistic, and because it would be an anomaly when the new legislation comes into operation, it ought to go.
Clause 5 deals with enticement. That is another anachronism. According to some unofficial inquiries, in the last 20 years there have been only about six or seven cases for enticement. An action for enticement need not be taken in the divorce court; it can be heard in a say that there seems to be some logic because in this case, as distinct from a case of adultery a man complains that somebody has enticed his wife away from him and he has lost her services. I say that there seems to be some logicl for these cases, but, in fact, very few of them have appeared before the courts, and those which have have almost always been extremely nasty. They have all been unsuccessful, and recently Mr. Justice Baker said that this sort of action was entirely anachronistic and ought to go. The Bill proposes that it should.

Mr. R. J. Maxwell-Hyslop: I think that there was an action for alienation of affections, but I may be misinformed. If there is a case which involves not the physical removal of either marital partner from the locus of a house but merely an alienation of affections, will that be abolished by the Clause?

Mr. Silverman: I understand that it will apply in that case, too. Alienation of affections is usually embraced in an enticement action. Usually the wife is enticed away from the marital home.
The Clause also embraces the case in which a parent, theoretically at any rate, can bring an action because somebody has taken his child away. I am not talking about a young child. He can bring an action on the basis that he has been deprived of the services of his child, who, for this purpose, is considered a kind of servant. This type of action has largely disappeared in practice. This is an anachronism, and as such it ought to go. There is the exception that if there is a contractual arrangement between a father and daughter there will still presumably be some kind of action available, although I suppose that it will arise in the same way as the action which an employer can bring because somebody has persuaded his employee to break his contract of service.
The same comments apply to the offence of harbouring. If a wife leaves the home and stays at Mr. Smith's house, technically Mr. Smith can be actionable for damages for harbouring, on the basis that if he did not give shelter to the wife she would be obliged to return to her husband. Needless to say, such a barbarous action has not been brought in the courts for many years, but it is a piece of legal deadwood which ought to be removed from the Statute Book.
Clause 6 deals with the circumstances which arose in Shaw v. Shaw. In that case there was not only a promise of marriage but a form of marriage. The lady in question married Mr. Shaw, thinking that she was entering into a valid marriage. It transpired that he had been married before. His second marriage was, therefore, bigamous, but this did not come to light until after he died. There then arose the question of the rights of the woman who had entered into a form of marriage with him, his first


wife having died after his subsequent "marriage". The case went before the court, which made the best decision that it could in the circumstances.
The Clause proposes that if a woman enters into what she regards as a bona fide marriage, and it later transpires that it is not, the provisions of the Inheritance (Family Provision) Act shall apply. This means that the woman will be able to claim against the estate if it is reasonable that she should be provided for just in the same way as a legal wife can, even though she is left nothing in the will. This provision has been introduced to deal with the situation which arose in Shaw v. Shaw, and I am sure that everyone will agree that this is just. These bigamous relationships leave trails of disaster, and we can only do our best to put things right.
Those are the major provisions of the Bill. The others are merely supplemental and technical. I am sure that this is a valuable Bill. It may be that not all its provisions will be accepted by everybody, but it removes much legal deadwood. It removes a number of legal anachronisms, and I think that it will remove from the courts a certain amount of bitter and unnecessary wrangling and domestic strife. It is in conformity with legislation recently passed by the House, and with the broad spirit of public opinion. I commend the Bill to the House, and ask that it be read the Third time.

1.27 p.m.

Mr. Abse: I am sure that the House will congratulate my hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman), who has steered the Bill through the House and been exceedingly sensitive throughout our proceedings to the opinions and feelings of all those who have been involved in the Bill.
We all regret that the original sponsor's illness prevented him from taking the Bill through the House, but he can feel confident that no one could have dealt with the Measure better than my hon. Friend for Aston has done in his absence.
It is a happy conjunction that the Law Commissioners found an hon. Member to pilot their recommendations through the House with such skill. It is right that we should thank the Law Commis-

sioners for having so clarified the issues that it has been possible for us to take the major step of ridding the law of anachronisms which we all agree are totally out of date.
This considerable Bill has a serious blemish, and I hope that the issue which I am raising, and which I raised in Committee, will be considered again in another place, because it is important that if we put through Bills which impinge upon human relationships we should be careful always to ensure that the interests of those who cannot constitute a pressure group, the children, are in the forefront of our minds.
I am not referring to the new Clause which was not accepted, and about which I make no complaint, since, clearly, there are merits and faults in the view which I was presenting. That is a matter of judgment for the House. I regard it as serious that in the Bill we are taking away a right which has been used in the past to protect the interests of illegitimate children and giving absolutely nothing in return.
Despite the Jeremiahs of the self-acclaimed moralists who are always talking of how promiscuous young people are, the recent survey conducted for the Sunday Times by Mr. Geoffrey Gorer shows that nine out of 10 of our girls and almost half our young men are sexually inexperienced until an engagement takes place. But, as the research done by Mr. Gorer reveals, a great change takes place when a betrothal occurs.
An engament is taken very seriously in Britain. That is clear from the statistics provided by Gorer. Despite the imaginative accounts which avant-garde journalists and other communicators always seem to want to peddle, we are a remarkably respectable people, and, as is revealed by the survey, there is greater stability than we would imagine if we listened to those who are always talking about the evils of a permissive society.
If celibacy is the rule before engagement, it is, however, clear from the survey that a great change takes place on engagement. The pledge of marriage is given and taken in high seriousness. For one woman in four, intercourse starts at betrothal. That is the interesting revelation of this considerable survey. This means that for a very substantial


proportion of our population, when young people become engaged, sexual intercourse follows for the first time. It is not surprising, therefore, that each year more than 80,000 brides go to the altar pregnant.
It is necessary to take account of this widespread conduct and that the law should be shaped so that, for their sake, illegitimate children born to mothers whose lovers have proved faithless do not suffer needlessly. Up to now it has been possible for a pregnant woman whose pregnancy followed her engagement to bring an action for damages and obtain a lump sum. The Bill abolishes that right.
One may take the view, as I think the House does, that adult men and women may vacillate and hesitate as much as they wish before entering marriage. We have decided, and are in the course of deciding, that no one should compel people to marry. But can we do this without the man, and, indeed, the woman, taking the financial responsibilities of which they are capable for the children they have conceived?
Despite the over-logical purists who complain that it is anomalous, as the law stands, a woman who has conceived during her engagement is able to recover in a breach of promise action compensation for her pregnancy. The Bill takes away that right and leaves the woman only with the right to take affiliation proceedings. This is not good enough, and I hope that the issue will be raised in another place.

Mr. Julius Silverman: My hon. Friend should point out that under the Maintenance Orders Act, 1968, it is possible to make a maintenance order for an unlimited amount in affiliation proceedings.

Mr. Abse: I was coming to that point What my hon. Friend says is correct.
As the Law Commissioners indicated in their report in seeking to justify taking away this right, it is possible for a maintenance order involving a large sum, a weekly affiliation order, to be made against a man who can be proved to be the putative father of a child. But, as the National Council for the Unmarried

Mother and her Child has indicated in the letters it has sent to many hon. Members, it is profoundly dissatisfied that a Bill should be passed which takes away the right to obtain a lump sum.
Men who are so feckless and reckless as to enter into an engagement and become the father of a child are often the sort of men who at one moment can be high earners and a little later low earners. In Committee, I commented on the high earnings of "pop" stars during their fews years of temporary popularity and their ability to limit their liability to the children they may have conceived during an engagement by a weekly payment. I mentioned "pop" stars, although it seemed to arouse the ire of some members of the Press concerned with "pop" music, because there are specific instances of such people evading their responsibility and being subjected to making only weekly payments.
But that does not only, or can only, apply to "pop" stars. There are reckless men, be they motor car dealers or actors, who at one moment may be high earners and against whom a substantial order may be made in respect of a child conceived during an engagement. It may well be that some years later, being reckless by general disposition and feckless by general temperament, they will be people of little means. Therefore, because an affiliation order involving a large amount may immediately be obtained, why should we assume that we have the right to take away, as we are doing, the right to obtain a large sum which could be settled upon a child so that it would not be necessary for a woman to pursue a weekly amount week in and week out through the courts? A settlement should be made which can assist with the long-term education and needs of the child. The taking away of this right is a serious weakness in the Bill.
It is no argument to say that the Bill is an inappropriate place to retain this right. There is a great danger that in our concern for the rights of adults we are overlooking the rights and needs of children. I therefore wish to sound a warning note. I am sure that the Solicitor-General is aware of the feelings which are bound to arise when a right of this kind is taken away without making an adequate substitute. I hope that


he will use his offices to bring to the attention of the Finer Committee, which was set up primarily to review the social security needs of single parents, the views which I am expressing and which I am sure are widely held in the House so that in the considerable amount which undoubtedly it has to do in reviewing the position of single parent families it does not overlook the need to provide not only that a lump sum settlement can be made on illegitimate children, but that that right is extended so that it belongs not only to the child conceived during an engagement but to all illegitimate children.
I hope that my hon. Friend the Member for Aston will not regard this intervention of mine as in any way devaluing or detracting from the considerable merits within the Bill. It is extremely fortunate that we no longer have the bitter arguments, which have been mentioned in the historical survey given to us by the hon. and learned Member for Surrey, East (Mr. Doughty), about these sort of matters and that a more rational approach is being adopted.
It is good that the law is beginning to shrink from acting as if it were a "nosey parker" instrument, meddling in what are essentially personal relationships of adult men and women. I congratulate the hon. Member, I am sure on behalf of the whole House. I thank the Law Commission for the clarification it has given and hope that the Bill will go, subject to this one blemish, happily on its way.

1.43 p.m.

The Solicitor-General: The Bill deals with certain anachronistic features of the existing law. The consideration which Parliament has given to the divorce law recently, which culminated in the Divorce Reform Act, 1969, has meant that these anachronisms have been projected and brought to light in a way which has had the useful result that we are observing today.
I express the gratitude that I feel to my hon. Friend the Member for Bury and Radcliffe (Mr. Ensor) for originally sponsoring the Bill and for putting his opportunity to such good use. I also congratulate my hon. Friend the Member for Birmingham, Aston, (Mr. Julius

Silverman) on his, if I may respectfully say so, extraordinarily constructive and well-informed contribution to the progress of this Bill.
I wish also to thank the Law Commission for the service which has been rendered. We have been working upon the basis of drafts and studies by the Commission, to which I express my gratitude. I take account, if I may respectfully say so, of the helpful contributions of my hon. Friend the Member for Pontypool (Mr. Abse), and I am happy to assure him that I will do what I can to ensure what I think would in any case be the event, that the Finer Committee will have regard to his propositions.

1.45 p.m.

Mr. Marcus Lipton: It would be ungracious if I were not to acknowledge the complimentary references made about me by my hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman). It is true that I started this campaign for the abolition of breach of promise and other actions mentioned in the Bill as long ago as 1955. I have learned from experience that that is not too long a time in which to achieve any reform in Parliament. This is because 15 years is a much shorter period than that which elapsed between the time that I first advocated the reform of the divorce laws in 1948 and action being taken.
On that occasion I said that action should be taken to implement one of the recommendations of the Denning Committee's Report which suggested that seven years' separation should be a ground for divorce from either party. That took 22 years to achieve. This Bill has taken only 15 years. I am not certain that my hon. Friend's reference to me as the putative father is altogether complimentary, because that seems to cast doubts upon the legitimacy of the Bill. Nevertheless this is a step forward in reforming the law.
For some time past judges have handled with increasing distaste this kind of litigation. In so many cases it was merely an outlet for spite and blackmail, and washing of dirty linen in public. These actions serve no useful purpose, and I congratulate the sponsors of the Bill on the success that they have achieved within what is, in


the sphere of law reform, a comparatively short time.

Question put and agreed to.

Bill accordingly read the Third time and passed.

ROAD TRAFFIC (DISQUALIFICATION) BILL

Considered in Committee.

[Mr. GOURLAY in the Chair]

Clause 1

DRIVING WHILE DISQUALIFIED TO INVOLVE DISCRETIONARY DISQUALIFICATION ONLY

Question proposed, That the Clause stand part of the Bill.

1.48 p.m.

Sir Peter Rawlinson: Clause 1 provides for the omission from Part I of the Road Traffic Act, 1962, of certain obligatory disqualifications. I would make clear that I am wholeheartedly in support of the principle of the Bill, but felt that this might be an opportunity to ask the sponsor of the Bill, the hon. and learned Member for Derby, North (Mr. MacDermot), to assist the Committee by telling us what this Clause provides and how it does it.

Mr. Niall MacDermot: I am glad to respond to the invitation of the right hon. and learned Member for Epsom (Sir P. Rawlinson). It gives me an opportunity to say a word or two on the Bill which, I hope out of a sense of modesty, I had not otherwise intended to do, partly also in case anyone interested in later Bills on the Order Paper should mistake my motives.
The purpose of the Bill, and the substantive part of it is contained in the first Clause, is to deal with an anomalous situation which has arisen as a result of the present law. The law is that when a person who has been disqualified from driving offends again by driving while disqualified and is caught and brought before the courts, the courts are bound to disqualify him again for an additional period of at least one year. On the face of it, that may seem quite reasonable.
Perhaps I can best describe the problem that arises by reading to the House a short report of a case which came before the Court of Appeal nearly a year ago, in May, 1969. I refer to the case of Regina v. Johnson. In giving judgment, the Lord Chief Justice explained that
The appellant was a man with 19 previous convictions, nearly all connected with motor cars. He was a compulsive driver while disqualified. In no instance was there a case of his being a bad driver.
He had never committed any driving offence other than that of driving whilst disqualified.
But because of the statutes applicable, he had already run up a period of disqualification which did not expire until 1984, and the Court was now compelled to add a further two and a half years, making it 1987. Yet the probation officer in his report said that probably the only thing that would keep the appellant out of trouble in the future, and the only thing he could do, and do well, was to get a job driving a car. Such circumstances",
said the Lord Chief Justice,
were constantly appearing in cases with which the Court had to deal.
He added:
Really it is for Parliament to consider whether this Court should not have the power to unravel all these disqualifications and give a young man a chance to do perhaps the one thing that he can do in life.
The Bill is intended to do that. The unravelling power is in Clause 2.
Clause 1 removes the mandatory nature of the power of disqualification and makes it purely discretionary for the court to decide whether to disqualify for an additional period when a person is brought before the court for committing this offence.
While I am on my feet, I should like to express my gratitude to a considerable number of people who have given their support and assistance. The Lord Chief Justice himself has permitted me to say that the Bill has his full support. I have had the assistance of the Law Commission, including its assistance in drafting, without which I do not think I could have got the Bill into proper shape and form. I have had great assistance from my hon. Friends the Joint Parliamentary Secretaries to the Ministry of Transport and my hon. Friend the Joint Under-Secretary of State for the Home Department, and I am grateful to those two


Departments. Last but not least, I have had the assistance of the Opposition Front Bench. I commend the Clause to the House.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Bill reported, without Amendment.

Motion made, and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 55 (Third Reading), and agreed to.

Bill accordingly read the Third time, and passed.

TREES BILL

Considered in Committee.

[Mr. HARRY GOURLAY in the Chair]

Clause 1

MODIFICATION OF RESTRICTION ON POWER TO MAKE TREE PRESERVATION ORDERS

Question proposed, That Clause 1 stand part of the Bill.

1.55 p.m.

Mr. Niall MacDermot: I wonder whether I might return the compliment by asking whoever is to speak on behalf of the Bill to explain a point in relation to Clause 1. As I understood from the explanation of the Bill which was given on the Motion for leave to introduce the Bill, the purpose of the Bill is to fill a gap.
The gap is that where there is in force a forestry dedication covenant and the covenantor dies, the covenant automatically lapses. There may then be a gap in time before a tree preservation order is made. In the meantime, the successor in title to the covenantor can cut down the trees and destroy them before a tree preservation order has been made. I understand that the purpose is to ensure protection of the trees in such cases by providing that for such land the tree preservation order can be made with the consent of the commissioners.
My concern and fear is that what we are dealing with ex hypothesi is the successor in title to a covenantor who is willing to preserve the trees by covenant who does not want to be bound by that covenant—in other words, who wants to cut down the trees. Obviously, a certain period will elapse before the intention of the successor in title to the original covenantor is ascertained. Time will be required to prepare the tree preservation order and to get the consent of the commissioners to the making of the order. During that time, the trees may be cut down. It seems to me that some kind of transitional provision may be required to continue in force, if only for a short time, the effect of the original forestry dedication covenant after the death of the original covenantor.
I appreciate that I have not put down an Amendment, but presumably this is a matter which could be dealt with in another place. I raise the matter by way of question to ask whether I am right in thinking that there is such a gap and that it could present a practical problem. I appreciate that I have raised this matter without notice, and I see none of the sponsors of the Bill present in the House. It may be that the right hon. and learned Member for Epsom (Sir P. Rawlinson), on the Opposition Front Bench, is not in a position to answer my question. If that is so, I am content for him to say so, in the hope that the sponsors of the Bill pan read the words which I am now speaking and consider whether the problem is a real one.

Sir Peter Rawlinson: As the hon. and learned Member for Derby, North (Mr. MacDermot) has said, none of the sponsors of the Bill is in his place this afternoon to deal with the point which has been raised on Clause 1. I can only say that, having listened to the hon. and learned Gentleman, I should have thought that he was right in his interpretation of the Clause, to which I happily came with a fresh and unclouded mind. Having looked at it, I should have thought that the hon. and learned Gentleman was correct.
I appreciate the difficulty which has been posed by the hon. and learned Gentleman. We have the advantage of the presence of one of the Law Officers

of the Crown, who could, perhaps, advise the Committee. I am not necessarily asking him to join in the debate, but perhaps subsequently he can look at the point which has been raised and consider whether there is need for an Amendment in another place.
I cannot give any assistance to the Committee myself. The hon. and learned Gentleman has made the point and I have no doubt that it will be taken into consideration when, as I hope, the Bill, which has the support of both sides of the House is considered by the other place.

2.0 p.m.

The Solicitor-General (Sir Arthur Irvine): In response to that courteous and careful invitation, I shall indeed go into the point and give it my consideration. I will keep in touch with my hon. and learned Friend the Member for Derby, North (Mr. MacDermot) and the right hon. and learned Member for Epsom (Sir P. Rawlinson) on the subject.

Clause 1 ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Bill reported, without Amendment.

Motion made, and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 55 (Third Reading), and agreed to.

Bill accordingly read the Third time and passed.

FREEDOM OF PUBLICATION (PROTECTION) BILL

Order for Second Reading read.

2.1 p.m.

Mr. Jasper More: I beg to move, That the Bill be now read a Second time.
This is not the first time that this or a similar Bill has been before the House. Four years ago the matters raised by the Measure were the subject of a considerable debate in another place. Founded on that debate—which itself was founded on a report of a committee of the legal society called Justice—a Bill was introduced into this House by me as one of those successful in the Ballot. It was, when called for Second Reading, talked out in this place by a Labour Minister speaking on a previous Bill until 4 o'clock, a familiar manoeuvre.
The Bill was introduced on a second occasion by me in the same form, also on a Friday, and on that occasion the Second Reading was talked out by the House being counted out after 2.15 p.m., another familiar manoeuvre in this place.
Last Session, a very similar Bill was introduced by my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre), who, unfortunately, cannot be with us today. That Bill, though not really welcomed by the Attorney-General, secured a Second Reading in the House. It went into Committee and, although most of its Clauses were opposed at that stage by the Attorney-General all its Clauses—with the exception of one, dealing with the question of malice—got through Committee.
The Bill also got through its Report stage on the Floor of the House. The Measure then came up for Third Reading in this place when, after considerable debate, it was again talked out, this time by an hon. Gentleman opposite speaking on the Bill until 4 o'clock.
A further day was then assigned for the Bill. 13th June, 1969. On that occasion the Bill failed to continue its progress through the House because the Government had decided on the previous evening, which was a Thursday, to suspend the 10 o'clock rule for the sake of another private hon. Member's Measure, the Divorce Reform Bill.
The debate on that Measure, as hon. Members may recall, ran through the night to the extent of cutting out the following day's, Friday's, business. In that way this or a similar Measure has, on three, if not four, occasions been pre vented, by various parliamentary manoeuvres, from succeeding.
It is regrettable that things should be in this state, because whatever views there may be about the matters in the Bill, I do not think that anybody can deny that they are matters which need to be discussed and decided upon in this place. They affect three branches of the law which directly concern the Press and broadcasting authorities—first, the law of contempt; secondly, the law of defamation; and, thirdly, the Official Secrets Act.
The original statement of the noble Lord the Lord Chancellor in 1966, in the other place, does not now sound particularly convincing as a reason for not wishing to pursue the matter. On that occasion the reason was that the Government would not have time in that Session for legislation on the issue. Since that occurred the Government have had considerable time for other forms of private Members' legislation. We have had Measures on homosexuality and abortion. We are told that we are now to have a Bill on hare coursing. Apparently all these things are more important, in the eyes of the Government, than the matters raised by this Bill, which is of fundamental importance to the Press and the public.
Even the Prime Minister said in the House, in response to a Question, that he was convinced of the abhorrence that should be held for hare coursing as a sport. After representing for 25 years his constituency of Huyton, which is almost within shouting distance of the Waterloo Cup, that might have occurred to the right hon. Gentleman rather sooner. I feel that in all these manœuvres about private Members' legislation there is, even in the highest circles, some element of hypocrisy.
Accordingly, there is nothing new that I can tell the House about the Bill, and for that reason I would only be repeating what is on record if I were to say a lot about its provisions, and particularly about the Clauses relating to contempt and defamation.
The Attorney-General will note that the Bill includes a Clause about malice. However, that provision could willingly be struck out in Committee, if he feels particularly averse to it. The Measure does not include a new Clause which was added in Committee to the Bill introduced by my hon. Friend the Member for Hall Green and, as far as I am concerned, that could willingly be brought into the Measure. My real point in moving the Bill at this stage is that it is surely time that the Government faced up to the fact that something should be done on this issue.
Perhaps something should be said on the other issue, that of the Official Secrets Act, which is not altogether in the same state as it was when the similar Measure was before the House on the last occasion. Hon. Members will be familiar with the way in which the Official Secrets Act, 1911, was passed. We have today done some quick work with two Bills which have passed through this Chamber. However, we have by no means equalled the record of 1911.
The Official Secrets Act was brought in on a hot August afternoon. It occurred on 18th August though this may be hard to believe. The summer of 1911 was the hottest of any summer in the 20th century. The Measure went through this House—not only on Second Reading but in Committee, on Report and to complete its Third Reading—to the extent of only eight columns of HANSARD. That is the amount of attention that was given to the Official Secrets Act in 1911, under a Liberal Government. It is not a Measure which one can say ever received a great amount of consideration. Indeed, it is fair to say that it is not a Measure of which those who originally drafted it would be very proud.
The Act is drafted in the widest and vaguest terms. As has been frequently pointed out, it makes almost anybody liable to almost any offence. It has recently been stated that there are only two legislative enactments in the world in which it appears that anyone being accused of any anti-State activity must be found to be guilty. One is Section 2 of the British Official Secrets Acts and the other is Article 58(10) of the Soviet Criminal Code.
A number of commentators have fastened on the Act since the recent decision of the Attorney-General to institute prosecution. It is not my purpose to infringe any sub judice rule.

The Attorney-General (Sir Elwyn Jones): I hope not.

Mr. More: I had expressed the intention of not doing so. But the right hon. and learned Gentleman will be aware of the views which have been expressed in a recent leading article in The Times, which said that if the Act was strictly enforced there could scarcely be a civil servant, and certanly no member of the Government, who would not be prosecuted under it. Reading the announcement today of a statement by the right hon. Gentleman the Prime Minister about the Gulf of Aqaba, I wonder whether he may or may not be prosecuted under the Act which, as far as I can see, applies to any person.
The article in The Times said that the Attorney-General had a discretionary power. This, of course, refers to that peculiar provision of the Measure which brings in the Attorney-General's fiat. Other commentators have challenged that view. They have said that, so far from being a discretionary power or a judicial decision, the Attorney-General is really making a political decision when he acts under this Statute. It would be interesting to have his comment.
The object of the Bill is to remove all this doubt, which must be very unsatisfactory to the right hon. and learned Gentleman, and put the whole test of the Act on the question of public benefit or public justification. What disturbs people more about the Act is not the cases which are prosecuted but those which are not. I cite the recent case of an employee in the Ministry of Health who wrote articles in the Spectator and in the News of the World and was proceeded against by his own Department and sacked. In reply to Questions from me, the right hon. and learned Gentleman said that he had no intention of prosecuting the two newspapers, although surely they were the more guilty.
This does suggest that there is a tendency under the Act to go for the soft culprit and not for the real culprit. It can be fairly said that there is great and growing disquiet about the way in


which these things have been operated. The Prime Minister produced a White Paper, after the Fulton Committee, called "Information and the Public Interest". It was a fair comment in The Times that it added nothing at all. What I hope will make a useful contribution is the committee which has been set up by my right hon. Friend the Leader of the Opposition under the chairmanship of my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) to go into the matter and try to reduce it to a sensible state.
It is with the object of seeing that the question is not allowed to rest in its present unsatisfactory state that I ask for the Bill to be given a Second Reading.

2.14 p.m.

The Attorney-General (Sir Elwyn Jones): I think that it was Dr. Johnson who said that a second marriage is a triumph of hope over experience. I do not know what he would say about a third attempt to introduce a Bill on this subject. The nature of the attendance in the Chamber is an indication that it has certainly not commanded much support either in the House or anywhere else. I regret to say that, while I admire the pertinacity of the hon. Member for Ludlow (Mr. More), I find the Bill to be even more full of objections than its predecessors.
The Bill concerns in some aspects the delicate but important balance between the interests of the Press, of the Executive and of the ordinary citizen. In my view, the Bill, like its predecessor, would tend to upset the present balance which, I think, on the whole is about right, and would do so by tilting it excessively against the individual citizen in the law of libel. I think that to some extent also, if it became law, it would diminish some of the present safeguards ensuring a fair trial.
A curious feature of the Bill is that, in some of its provisions, it rejects the Amendments which were found necessary in Committee on the Bill sponsored by the hon. Member for Birmingham, Hall Green (Mr. Eyre) and reverts to texts which that Committee found unsatisfactory.
For instance, Clause 11(2) provides that the Bill shall apply to Scotland, but,

of course, there are important distinctions and differences between the law and administration of justice in Scotland and the law and administration of justice in England and Wales. To disregard that salient fact, when the previous Bill was amended by the exclusion of Scotland from its provisions, seems remarkable.
Again, there is a difficulty in the very first Clause of the Bill, which proposes that proceedings for contempt of court shall not be instituted except by or with the consent of the Attorney-General. I am touched that the hon. Gentleman should have such confidence in me and other holders of my office.
It reflects the fact, which, I think, is now well known to the people of our country at large, that the Attorney-General, when he makes a decision, albeit in a matter of contempt of court or under the Official Secrets Act, does so in a quasi-judicial way, considering only the interests of justice and the public interest and, of course, disregarding entirely any political or party political consideration. The Attorneys-General who have preceded me and I myself have been faithful to this doctrine and duty.
However, Clause 1 of the Bill proposes that proceedings for contempt of court
…within the United Kingdom shall not be instituted except by or with the consent of the Attorney General.
The matter could not be remedied simply by substituting the Lord Advocate for the Attorney General. I understand from my colleagues in Scotland that that would be unacceptable north of the Border.
I am advised that his position is that of the Public Prosecutor. All criminal proceedings in Scotland are brought on behalf of the Lord Advocate. Since proceedings for newspaper contempt are usually based on prejudice to the defence, one can see that there might conceivably be a conflict of interest if the Lord Advocate's consent was always required.
Moreover, in view of the principle of secrecy in pre-trial investigations, which is the practice in Scotland, proceedings for contempt have been much more common in Scotland than in England and Wales. Not only have they in many cases been brought by individuals, but in many of those cases individual complainants have succeeded. The case of Stirling v. Associated Newspapers


Limited, in 1960, was an illustration of that.
There are other aspects of the Bill in Clauses 6 and 7 which would create special difficulties in regard to Scotland and make the Bill unacceptable. I do not propose to traverse at length every Clause in the Bill. We have been through all this before, but there are one or two aspects of it to which I think I should refer. I have already commented upon Clause 1. It takes account of what happened in Standing Committee on the previous Bill in that it no longer attempts to define the scope of contempt.
Touched as I am by the confidence it reflects on the holder of my office, I hold the view that it is not right to take away the right of the individual citizen in proceedings for contempt. I observe that the right hon. and learned Member for St. Marylebone (Mr. Hogg) is now occupying his place on the Opposition Front Bench. He may not share the same view as I do, as he himself was pursued by a private individual in regard to contempt—and pursued unsuccessfully.
It is questionable whether the Attorney-General should have the last word in every case, which is what the Clause proposes. Suppose, for example, complaint was made about some comment on proceedings in which a Ministerial colleague of the Attorney-General, as representing the Crown, was a party. Would the complainant be entirely satisfied with the Attorney-General's decision not to act? It would be much better if the Attorney-General could say, "I do not think that your complaint justifies me in instituting proceedings for contempt, but you are welcome to test my opinion by taking it to court yourself and persuading the court that my view is wrong".
It is the case, I think, that private proceedings would not take place very often. It is an expensive business. In practice, in all the cases—and there have been quite a number referred to me since I have been Attorney-General—except one, where I thought proceedings ought to be brought against a newspaper and the newspaper in that case admitted its fault, my refusal to take proceedings for contempt has ended the matter.
I nevertheless feel that a situation could arise where a refusal by the Attorney-General of the day, whoever he may be, could leave a sense of grievance. Therefore, the present arrangement should stand where, in practice, on the rare occasions when contempt proceedings are brought they are brought by the Attorney-General. There may conceivably be a case in an emergency situation where the complainant should be able to go straight to the court himself.
As to Clause 2, in regard to a repetition of the defamatory matter, there is no need for the Clause. I earlier expressed the view in discussion of the matter that where there was a genuine newspaper campaign to expose a scandal mere repetition of the words complained of could not amount to contempt. I am glad that my views were confirmed in a judgment of the Court of Appeal in Thomson v. Times Newspapers, in which Lord Justice Salmon said that he
could not think why the fact that the plaintiff had issued a writ for libel should preclude the defendant newspaper…from making any further comment about him.…
It was a widely held fallacy that the issue of a writ stifled further comment, but I know of no authority which supports the view that further comment would amount to contempt of court. Once a newspaper had justified, and there was some prima facie support of justification, the plaintiff could not obtain an interlocutory injunction to restrain the newspaper from rebutting the matters complained of.… It seemed equally obvious that no other newspaper which sought to do so had committed contempt.
In my view, that judgment indicates that there is no need for Clause 2.
Clause 3(1) corresponds with Clause 4 of the Bill introduced by the hon. Member for Hall Green. Although its purpose is sound, and I approve of its purpose, I pointed out on the Second Reading of the former Bill that its drafting could do with a great deal of improvement. We went to some pains in Committee to achieve an improvement. It may carry weight with right hon. Gentlemen opposite when I say that the improvement had the enthusiastic support and approval of the hon. and learned Member for Northwich (Sir J. Foster), and, indeed, of the then promoter of the Bill. For some reason best known to himself, the hon. Member for Ludlow has seen fit to reject the work of the Committee in respect of Clause 3(1).


I think that that can only reflect the view that his heart is not really in his Bill.

Mr. More: That is completely wrong. The suggestion that the heart of an hon. Member cannot be in a Bill which he has presented to the House in three successive Sessions is surely hardly tenable.

The Attorney-General: If the hon. Member's heart is in his Bill, his mind did not run much to the Bill. After all the painstaking effort we managed to amend the Clause in a way which might have made it a modest little piece of reform of the law of libel, but the hon. Member has thought it not worth while to retain it in his Bill.

Mr. More: The right hon. and learned Gentleman is confusing two Bills. This is a separate Bill from that which was introduced by the hon. Member for Hall Green.

The Attorney-General: Yes, of course it is a separate Bill, but Clause 3(1) was in the original text of the Bill introduced by the hon. Member for Hall Green. It was rejected by the Committee, but the Amendment which was the product of much labour took its place. However, I do not want to quarrel with the hon. Member, whose zeal in this matter I of course respect.
Clause 3(2) is new, but it is wholly unnecessary. It would seem that the hon. Member, although I do not criticise him for this in view of the considerable volume of law reform for which the Government have been responsible, has overlooked the Civil Evidence Act, which implemented the Fifteenth Report of the Law Reform Committee. The Clause provides a defence of justification where the words complained of impute the commission of a criminal offence and the plaintiff at the time of publication has been convicted of that offence and the conviction has not been set aside. This situation is already provided for by Section 13 of the Civil Evidence Act. Clause 3(2), therefore, is quite unnecessary as that is the law at present.
Clause 4 reproduces Clause 5 of the earlier Bill, but the law already gives sufficient protection to reports of foreign proceedings in circumstances where they were matters of genuine public interest.
In my view, the law on this matter is pretty well right as it is. As I explained on an earlier occasion, the law is set out in Webb v. The Times Publishing Company, in which it was stated that there is qualified privilege if the subject matter is of legitimate and proper interest to the English newspaper-reading public. In the words of the learned judge, there must be
…a legitimate and proper interest as contrasted with an interest which is due to idle curiosity or the desire for gossip.
Idle curiosity and gossip do not warrant the protection which is afforded by qualified privilege.
Clause 5 reproduces Clause 6 of the earlier Bill. Here again, the hon. Gentleman has thought it right to reject the work of amendment which took place in regard to the earlier Bill to cure what were clear drafting difficulties.

Mr. More: I hope that the right hon. and learned Gentleman will not accuse me of rejecting or discounting things. My Bill and that of my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre) both came to grief. Surely all we are doing now is starting again. It was not my wish that it should be done in this way. This is the situation in which we have been placed by the Government.

The Attorney-General: The hon. Gentleman has introduced the Bill. I should have thought that he would have applied his mind at least to remedying in the Bill the defects which were found in the text of the previous Bill. That would not have involved a great deal of initiative on his part. The object of Clause 5 is unobjectionable, but its defects in drafting are considerable and were amended in an earlier stage of the previous Bill.
Clause 6 reproduces Clause 7 of the earlier Bill, but this Clause is wholly unacceptable. It appeared in an earlier Bill, but was withdrawn at the instance of the then promoter, on the ground that he had been convinced that it would be better to leave questions of malice to the jury. I agree with that proposition. In my view, juries are admirably constituted to decide questions of malice. I am comforted in that reflection by the fact that that view has the support of the Master of the Rolls, the present Lord


Chancellor and his immediate predecessor—

Mr. Roy Roebuck: And mine.

The Attorney-General: —and that of my hon. Friend the Member for Harrow, East (Mr. Roebuck), a distinguished journalist to whose views the House will pay most careful attention.
Clause 7 appears to be a compromise between the corresponding provisions of the Bill introduced by the hon. Member for Hall Green, which provided that damages should be assessed by judges rather than by juries, and the arguments I advanced against that Clause in Committee. It purports to give the Court of Appeal the same power to vary awards of damages made by juries as it has to vary awards made by judges. The real issue is: do we want juries to decide the question of damages, or a single judge?
My view is that, here again, juries are probably the appropriate body to decide the matter. Juries are essential in serious criminal cases and of great value in civil cases affecting the character and reputation of the citizen. The right to have one's character valued by one's peers—by one's fellow countrymen—is not something to be lightly surrendered.
The fear has been expressed in some quarters that juries tend to award unreasonably high damages against newspapers because they are prejudiced against them; but I do not believe that this fear is justified. My view is that a jury is as fair an assessor of damages as anyone. Juries are far better educated than they were. They are drawn from a wide range of the community. It can safely be said that their standard of intelligence and judgment is now higher than it has ever been.
In addition, the Court of Appeal has the power to set aside verdicts where awards of damages are utterly unrelated to the needs of the case. In fact, the Court of Appeal has on occasion gone a very long way towards indicating what in its view a second jury should award, even though it has not substituted its own assessment as the proper amount. Accordingly, Clause 7 is, in my view, as unacceptable as was its predecessor.
Clause 8 is the Clause dealing with one aspect or the Official Secrets Acts. It seeks to provide a new defence to those charged under Section 2(2) of the 1911 Act with the receipt of information supplied in contravention of the Act. The House will note that the Clause does not seek to affect the liability of those who supply the information in contravention of Section 2(1). The defence that it seeks to provide for the recipient of unauthorised information is that the receipt of the information was not prejudicial to the public interest.
It follows that the question whether the public interest has been injured or prejudiced would be a matter to be determined by a court—by a judge. That is not an issue which can be satisfactorily determined in that way. It is not a justiciable issue at all. I said this when the previous Bill containing a similar Clause was in Committee:
It is not a matter of law, nor necessarily is it a matter of weighing up facts relating to a particular incident. It may often raise political, diplomatic or international issues upon which the judge ought not to have to adjudicate. It may raise issues more suitable for deliberation in Parliament than at the Old Bailey."—[OFFICIAL REPORT, Standing Committee C; 16th April, 1969, c. 49–50.]
The courts have rightly regarded public policy as an unruly horse and have been extremely reluctant to pronounce upon it. To ask the courts to determine matters which I submit are properly for Parliament is to bring the judges into politics. For that reason, I advise the House, as I did when the previous Bill was before the House, that this Clause should be rejected.
My conclusion is that this Bill is even less satisfactory than the Bill which was before the House on Report a year ago, and I am not surprised that it has failed to attract support.

2.38 p.m.

Sir Peter Rawlinson: When first speaking on the Bill the Attorney General quoted Dr. Johnson's comment on marriage and applied it to my hon. Friend the Member for Ludlow (Mr. More). Dr. Johnson, however, would have approved of my hon. Friend's pertinacity in proceeding with this Bill or with Bills of another kind supported by others of my hon. Friends. I disagree with the Attorney-General, because I believe that changes in the law


are called for, for different reasons, in respect of each one of the three matters dealt with in the Bill; namely, contempt of court, defamation and official secrets. How these changes can be best effected is a matter for debate.
Therefore, when the Attorney-General gives the impression—and I do not mean this in a personal sense—that we are entitled to be complacent about the state of the law in these three matters I think he is in error. It is of great importance to a society like ours, which should be an open society, that matters should be kept secret only when they are of the gravest importance, and there should be the power and right to comment and criticise with the greatest of freedom. There must be a balance, and the present law imposes such a balance between a person's right to commentate and the right of another to have his reputation not wrongly traduced.
My hon. Friend referred to the committee in which I am at present engaged in a study of these three matters. I do not disguise from him the difficulties that surround them and that my greatest anxiety is over the difficulty of how to deal with official secrets, which are covered in Clause 8. I have definite views about defamation and contempt of court, but the matter of official secrets is one of the greatest difficulty.
Clause 1 covers contempt of court. What should be eliminated but has not been, even though we welcomed the statement of the law by Lord Justice Salmon in Thomson v. The Times is the element of uncertainty. The commentator does not know when he makes the comment whether or not he may be in danger of contempt of court. We should introduce into the law a degree of certainty so that a curtain can be brought down, as it were, after which the commentator knows that there is no right to comment if comment would deter witnesses from giving evidence or might influence the court.
No one—least of all journalists—wants to see trial by newspaper or television. What everyone wants to see is proper trial with proper evidence given to the court. But it is wrong when a newspaper is engaged in one of its most important public roles, that of exposure, probing and investigating, that it should be hampered and restricted, as I think news-

papers are now, by the uncertainty of the law of contempt.
However, whilst I want to see changes I do not believe that the Bill deals with the matter in Clauses 1 and 2 in the way in which I feel that the law needs to be changed. For instance, it may well be said that once a man has been arrested, or the summons or complaint has been issued and served, comment must be restricted and must avoid anything that would deter witnesses or influence the court. But only then could a pending criminal case be affected. In a civil action I think it highly unlikely that in any circumstances a judge would be so influenced that the course of justice would be affected by any comments when he thereafter tries the case alone.
However, when a case is to be tried by judge and jury the order for such a trial should bring to an end the unrestricted right to comment, and thereafter the commentator must be on guard against deterring witnesses or influencing the court. I should like the publisher and those engaged in publication to be afforded certainty so that they know where they stand, so that they know when they can comment and when they must cease to comment. Clauses 1 and 2 are not adequate for that.
I now turn to the law of defamation. It is some years since Lord Diplock in the case of Slim v. Daily Telegraph opened his judgment by commenting about the law of defamation. Those who practise in this branch of the law know only too well how complex it is and the pitfalls into which even the lawyer can so easily fall if he is not expert in it. It has become so complicated that it calls for change and reform. As I have said before, most of it is lawyers' law, in the sense that it has been made mostly by the judges. This House is usually to blame for the complexities of legislation, but here it is lawyers who have made it so complex that difficulties are created. Where we have complexity we also get uncertainty, and then there is unfairness and a restriction of the right of free expression, which is a characteristic of the present law of defamation.
There should be simplicity over the defences to an action for defamation, which should perhaps be divided into two—justification, which is that what


was said or written was true, or privilege. That privilege would contain the absolute privilege of reporting anything said in this House or in a court of law and the extension of qualified privilege to bring within it the present defence of fair comment.
I believe that it would be the general view that if a man writes about something in the public interest honestly and with good faith, has taken reasonable care to ascertain the facts and believes them to be true, and if the comment could reasonably be made upon those facts, that should be a defence to a claim for defamation. If we could obtain simplicity by bringing this defence under the umbrella of qualified privilege, which itself is only a part of privilege, we should eliminate all the complications arising from the defence of fair comment and the element of malice which must be introduced.
I agree with the Attorney-General about the position of the jury. It is right that it should be retained to make a decision where a man says that he has been defamed. The existence of a jury is a protection to newspapers. Potential plaintiffs know that there is a jury and the risks which may be involved, the great range that there may be in the damages given by a jury. It may sound paradoxical, but this is regarded by those with experience of advising newspapers as a protection. It is interesting to note that in one of the most recent libel actions damages of about £40,000 were given but not against a newspaper; a newspaper was not involved.
The jury should be retained, but we must ensure that the law is sufficiently simple and clear to permit the judge to direct the jury on the law and for it to understand what it is about. Part of the difficulty is that sometimes juries do not know what they are about.
Again, I think we should consider whether or not—this applies to the whole field of civil wrongs—we should examine carefully whether the courts should have argument addressed to them about the quantum of damages. I believe that a good deal of work can and should be done in this respect and that it should not be neglected.
I turn to the third matter in the Bill—official secrets. As my hon. Friend said, Section 2 of the 1911 Act is more akin to Article 58 of the Soviet Criminal Code. Section 1 of the Official Secrets Act is directed towards the deliberate passing of information which is intended and calculated to be of advantage to an enemy, and I would not have thought that anybody in this House would regard the principle behind that section as other than perfectly correct. That must be an offence. It is a matter which should be dealt with by the criminal law.
However, it is difficult to believe that the Minister of Housing and Local Government has any official secret or that the Department of Health and Social Security can have secrets. Of course, they have confidences, like any other person. Whether it be a large company or a small shop or an individual, everybody has his secrets and confidences which he does not wish to have betrayed. But can it be said that these matters are official secrets which bring with them all the sanctions of the criminal law if they are betrayed?
On the other hand, in other Departments of State there can be secrets the betrayal and passing on of which and the receipt and publication of which could, in another sense, affect the security of the State, the wellbeing and the order of the State, or, indeed, the economic interests of the State. Section 2 says that if I am told anything by anybody who holds office under the Crown and I pass on that information, I am guilty of an offence. We know perfectly well that many people have been guilty of an offence under Section 2 of the Official Secrets Act; but the Act left the widest discretion and there was a requirement to have the leave of the Attorney-General before a prosecution took place. For that reason there are few prosecutions. However, it is not right that in our system of law we should create a situation in which offences cannot be properly prescribed and where there can be such a wide area of discretion.
I do not pretend that it is at all easy to define what is a secret, what is a matter which should be kept within the knowledge of those who have responsibility in government and which they have the right to retain, failing which the criminal law is invoked. In other


matters there are the disciplines of the Civil Service and the disciplinary powers which can be exercised. The civil law can be exercised, in the same way as the chemist in I.C.I. or the scientist in British Petroleum who betrays company confidences or secrets can have the civil law brought against him—and, in addition, of course, there is the sanction of dismissal.

Mr. More: My right hon. and learned Friend will have taken cognisance of the fact in the deliberations of his own committee that apparently in the United States they seem to manage very well without an Official Secrets Act at all.

Sir P. Rawlinson: But they have classified information, do they not? That means that somebody has to classify it. Therefore, a Minister is doing the classification. I know that the system is different from ours. One should examine—in fact, one has examined—these various matters. One will take into account what is behind my hon. Friend's intervention. But I cannot conceal from the House that I feel the gravest disquiet in permitting a situation to arise whereby information can freely be given and published about categories of matters which may not directly deal with the security of the State but do affect the life and order of the State.
This is the difficulty. I believe that a change has to be made because I do not believe that Section 2 is tolerable in its present form. It has lived a chequered life and the time has come to change it. But, with respect to my hon. Friend, I do not believe that in Clause 8 he has met the problem or dealt with the mischief which is inherent in Section 2. Therefore, while I congratulate him on the gallantry of his attempts and on his pertinacity, and while welcoming the fact that he continues to bring before the House these matters which are of great public importance, I have very grave disquiet about the method by which he has sought to deal with what I consider to be substantial problems.

2.57 p.m.

Mr. Niall MacDermot: I agree with my right hon. and learned Friend the Attorney-General that this Bill is too riddled with defects for it to

be right for the House to give it a Second Reading.
I wish to speak shortly, in view of my right hon. and learned Friend's remarks on Clause 8. I agree with everything which the right hon. and learned Member for Epsom (Sir P. Rawlinson) said about this Clause, both as to the unsatisfactory nature of the present law relating to official secrets and the very great difficulty that faces anyone who tries to amend it and put something better in its place.
I was, however, a little concerned at what was the main reason which the Attorney-General gave in advising the House that this would not be an acceptable Clause. If I understood him correctly, he felt that it was not right to put upon the courts—and, in particular, upon Her Majesty's judges—the task of deciding whether or not publication of a particular matter was in the public interest. He expressed the view that that would be bringing the judges into politics and requiring the judges to decide matters which were more properly decided by this House.
My anxiety is this. Not long ago we discussed the Bill introduced by my hon. Friend the Member for Birmingham, All Saints (Mr. Walden) on the right of privacy. That Bill received extremely wide support in this House, and my hon. Friend withdrew it only because of the Home Secretary's announcement that he was setting up the Younger Committee to investigate this whole subject. It was a crucial part of that Bill, which was founded on a report of Justice, that among the defences which should be open to newspapers would be the defence that publication of the matter in question was shown to be in the public interest. The actual drafting of my hon. Friend's Bill went even wider and suggested that the defence should be open to a newspaper that it had reasonable grounds for thinking that publication was in the public interest. I think that went too far.
In any event the point which was a crucial part of the Bill was that the issue should be justiciable—that it should be able to be tried before the courts. If we accept the idea which has been expressed by my right hon. and learned Friend today I think that we strike a grave blow


at the possibility of introducing a law of privacy into this country at all, and I should be very sorry if that were to be the position. It does not seem to me prima facie to be an intolerable burden to put upon the courts.
The courts are not to be expected to express a view whether a matter which is published is either right or wrong. They are merely asked to express a view whether it is right that it should be published. In other words they are asked to express a view whether the interests of freedom of speech should prevail over any other interest—in the case about which I am concerned, the interest of the new right of privacy which I hope will be established in our law, and in the present case the interest of protecting from publication official secrets.
It seems to me that this is a matter which a court is perfectly well able to weigh and decide. It is not so very far away from the matter which courts already have to decide now in the law of defamation when considering the defence of fair comment and whether or not the matter is fair comment on a matter of public interest. In those circumstances, the courts have to decide whether or not the matter in question is one of public interest.
So, while not in any way wishing to dissuade the House from following the course which my right hon. and learned Friend has recommended, I hope that my right hon. and learned Friend and others will consider further the particular reason which he has given for rejecting the Bill and keep open as far as possible the question of whether matters of this kind can properly be decided by the courts.

Question, That the Bill be now read a Second time, put and negatived.

AMENDMENT OF STATUTORY INSTRUMENTS BILL

Order for Second Reading read.

3.3 p.m.

Mr. R. J. Maxwell-Hyslop: I beg to move, That the Bill be now read a Second time.
First, the Bill would enable Parliament, if it so desired and if it so resolved, to amend two-thirds of the legislation passed by central Government which at the moment is not subject to amendment by Parliament. It is a representative truth to say that for every piece of legislation passed by Parliament twice as much is passed by Ministers. This is quite apart from legislation introduced by local authorities under delegated powers. At the moment, when we give Ministers power to legislate by Statutory Instrument, we forgo any right other than to accept or reject the result of granting these powers.
If literally thousands of amendments are accepted each year to legislation which passes through the House, it is in the highest degree improbable that no amendment is needed to legislation by Statutory Instrument made by Ministers under delegated powers. Moreover, a great number of the Amendments made by the House to Measures passing through it are not debated. A Minister will rise and recommend an Amendment, either in Committee or in the House, saying merely, "This is a drafting Amendment", acknowledging, in other words, that the Bill as introduced was badly drawn and that, if passed into law, it would have consequences not intended by its originators.
If Bills carefully prepared by Departments are peppered with drafting errors, how improbable must it be that Statutory Instruments produced by draftsmen no more skilled than those who draft Bills can be innocent of these defects. What is more, both by weight and by numbers of pages, there is twice as much legislation made by Statutory Instrument as there is passed by the House through its normal processes in Committee and on the Floor of the House.
Broadly speaking there are two procedures for delegated legislation. First, there is that which requires an affirmative Resolution of the House in order


to have statutory effect, and second, there is that which becomes law automatically unless either House of Parliament passes a Prayer petitioning Her Majesty not to confirm it. In the first case, the Measure must come before Parliament; in the second, the negative Resolution procedure, it need never come before the House, although a draft is nominally laid upon the Table. In the first case, moreover, it is the common experience that Ministers, of whatever party allegiance, do not seek to justify the detailed wording of their Statutory Instruments, but, with crocodile tears pouring from their eyes, they point out that the House has no power to amend and must either accept or reject.
Time and again, judges bemoan the fact that Parliament passes badly drafted legislation, legislation which is ambiguous or self-contradictory, which leaves gaps which were plainly unintended, or which covers situations not intended to be covered. Statutory Instruments are just as guilty of this defect as are Acts of Parliament.
We all know that Bills are passed through the House without our individually having read them. I do not believe that there has ever been a Member of Parliament who could claim to have read through every Bill passed during his membership. How much more certain is it that only a tiny proportion of Statutory Instruments can ever be read by Members. We even have the outrageous state of affairs in which we are asked to pass an affirmative Resolution to a Statutory Instrument on which the Statutory Instruments Committee has not yet reported. Thank goodness we are bound by our rules, so that the Chair draws to the attention of the House in this circumstance that a Statutory Instrument has not yet been reported on by that Committee.
In those circumstances, the existence of the Statutory Instruments Committee becomes farcical. If it subsequently reports that a Statutory Instrument is ultra vires after the House has already given its assent, of what benefit is its report? The Statutory Instruments Committee is set up as a safeguard not to report upon the wisdom of any Measure, but whether the powers which the Minister is purporting to exercise in making his Order exist at his behest and command. I

should think that that is an adequately limited task for the Statutory Instruments Committee to perform, and it is doubly unsatisfactory that it should on occasion be denied even this limited task.
The second evil which the Bill seeks to remedy concerns the negative Resolution procedure. In private discussions with hon. Members of both sides of the House, it has become clear that very few of our colleagues know the rules which apply to the assessment of the 40 days during which Prayers to annul may be brought before the House. Most of our colleagues know that there are 40 days. What many do not know is that they are largely illusory. They include Fridays, Saturdays and Sundays, upon which no Prayer can be entertained—on Saturdays and Sundays because the House does not sit, and on Fridays for procedural reasons.
Moreover, when Parliament is dissolved and a General Election is held and a new Parliament is sworn in, even the days when no business is conducted by the House, except the swearing in of Members, count as part of the 40 days.
To indicate that this is not merely a hypothetical question. I would point out that when the Exeter Order to extend the boundaries of the City of Exeter eventually came before this House, three of the last four days on which a Prayer to annul that Order could have been entertained were actually occupied by swearing in Members. Had that process been a little slower and occupied one additional day, there would have been no opportunity for the House to exercise the right—on which it divided—to pray against that Order. Under the negative resolution procedure, that Order would have become law without any opportunity for the House to debate it. Even had the Leader of the House been persuaded, however strongly, that it ought to be debated, he would have been powerless to give time, because in the computation of the 40 days, there is this ridiculous rule as a result of which many of the days are illusory.
Incidentally, when I sought advice from the authorities of the other House concerning the Exeter Order, it became apparent that the method used by the House of Lords authorities for computing the 40 days gave a different result from the method used by the authorities


of the House of Commons. The result was that one further day was made available in the House of Lords than in the House of Commons, although both were pursuant to the same words in the same Act. I am sure it will be agreed that that is an entirely intolerable state of affairs.
It may be that if the Bill receives a Second Reading and goes to Committee there will be those, including, perhaps, those who speak for the Government, who will feel that a period of 40 effective days for praying is too long. I should be happy, as I am sure would every hon. Member supporting the Bill, to consider with an open mind whether the number of effective days for entertaining negative Resolutions should be 40, or a lesser or greater number, but what is incontrovertible is that the number of days should not be a matter of caprice and fortune.
It should not depend on whether there is a period of interruption by an election, whether hon. Members are being sworn in, or the day of the week on which the draft Regulation or Order is laid before the House, and, therefore, how many Saturdays, Sundays, and Fridays there are within the period of 40 days, on which no such Prayers can be entertained.
This must be a matter of great constitutional importance if we are concerned, as I hope we all are, that Parliament should be made more, rather than less, relevant to the affairs of our country. There is widespread evidence that many people, and particularly younger people, consider that our parliamentary institutions have become less and less relevant to day-to-day life. This is an attempt to make Parliament more relevant.
Let us bear in mind that many of the things which affect people's day-to-day lives are controlled not by Acts of Parliament, but by delegated legislation. Whether we are dealing with speed limits, the handling of food in shops, or weights and measures regulations, these are all matters which have the force of law by reason of Statutory Instruments, and not by reason of detailed legislation which is subject to amendment by the House of Commons.
With that general introduction, I should like now to go through the contents of the Bill seriatim.
Clause 1 adopts the same definition of the term Statutory Instrument as appears in the Statutory Instruments Act, 1946. The then Solicitor-General, Sir Frank Soskice, as he then was, has authorised me to say that, as one of the sponsors of that Bill, he never intended that the vast amount of Statutory Instruments which flowed from it should not be subject to effective control by the House. He kindly offered to help me in drafting this Bill, should I require it, and I am grateful to him for that.
In Clause 2, we state that the power to amend Statutory Instruments is not retrospective. It is much more restrictive. It says that when, in future, the House passes legislation which includes the granting of new powers to legislate by Statutory Instrument, the House may, if it so wishes, and not if it does not so resolve, couple that new authority granted to Ministers with the restriction that in the exercise of that authority the House of Commons shall have the right to amend the draft Instrument.
In other words, if the Bill, including Clause 2, is passed, that does not mean that every Statutory Instrument will be subject to amendment or that Statutory Instruments made pursuant to all Acts passed after the Bill receives the Royal Assent will be subject to amendment. I do not doubt that that could be onerous for any Government, but it means that where the House gives wide powers to a Minister either to spend public money—for example, in the case of agricultural improvement grants—or in connection with planning procedures or transport matters—when it approves the principle behind such Measures but it wishes to make sure that they are properly drafted it can resolve to give itself the power to amend those Statutory Instruments before they pass into effect.
The time which I recommend for passing that kind of resolution is after the House has assented to the Third Reading of a Bill—that is, when the Bill can no longer be amended by the House of Commons—so that people know its final form, at least, as it leaves the Commons but before Royal Assent has been signified to it. That seems to me to be a perfectly reasonable moment to


decide whether such a Measure shall be made subject to the Amendment of Statutory Instruments Act, as the Bill will be if it passes into law. This would be done by moving, after the Third Reading, a substantive Motion of the following form:
That the… Bill shall be subject to the Amendment of Statutory Instruments Act, 1970.
Clause 3 seeks to give a more useful function to the Statutory Instruments Committee. I was advised by the authorities of the House, to whom I express my gratitude, that rather than refer to the Statutory Instruments Committee by name, a more suitable method of drafting would be to use the form which appears in Clause 3.
At present, the function of the Statutory Instruments Committee is to warn the House whether a Statutory Instrument, brought to the House for affirmative Resolution or laid in draft and subject to negative Resolution, is ultra vires. As I have pointed out, the Statutory Instruments Committee is sometimes so lightly regarded by the Government of the day—this is not a party political point—that some Measures are brought before the House without the Statutory Instruments Committee even having reported upon them.
It seems to me that it would be a useful function to give what I regard as an important Committee—the Statutory Instruments Committee—additional power not only to report to the House whether a Measure is ultra vires, but to recommend, if it so desires, that certain Amendments should be made to the Statutory Instrument.
There are two reasons for that. At the moment, when defects appear in a Statutory Instrument the Minister can either steamroller the Measure through, defects and all, or withdraw it and re-table it. What he cannot do is correct it by Amendment. In this case, if the Statutory Instruments Committee takes the view that certain provisions of a Statutory Instrument are ultra vires it could recommend their deletion or it could, for instance, recommend—and this would not exhaust its power of recommendation or amendment—a change in the form of words so as to bring it within the compass of the alleged enab-

ling Acts. Both of these functions could broadly be described as being of assistance to the Government of the day rather than hampering them.
The Statutory Instruments Committee could also recommend to the House, with no more power than that of drawing attention to and making recommendations, any other amendments which it so desired, bearing in mind that since the House would have power of amendment this is something in which it would not normally indulge on what I would call a qualititative basis as opposed to a legalistic basis.
It would make service on the Committee much more interesting than it must be now. It is right that tribute should be paid to those who serve on the Committee. It must be a most arduous and, in many ways, a tiring and unrewarding job to read through each Statutory Instrument merely to see whether it falls within the proper compass of the alleged enabling Act. I would like to express my gratitude to colleagues on all sides of the House who undertake this necessary function and who receive little, if any, public appreciation for their labours.

Mr. Peter Archer: While I see the merits of enlivening the proceedings of the Statutory Instruments Committee, is the proposal, since there is no Order Paper beforehand, that Amendments shall be proposed to what may be highly technical Statutory Instruments, discussed on the spot and incorporated into the Committee's Report—just like that?

Mr. Maxwell-Hyslop: The hon. Gentleman may have the advantage of me because I have never served on the Statutory Instruments Committee and I do not know the form which its proceedings take and how it draws up its report, any more than I have served on the Estimates Committee and know the form in which it draws up its report. That is a matter which could be left to the Committee, to decide the procedure, as to whether members of the Committee would have to give advance notice of Amendments they wished to make, and whether there would be a system of starred Amendments.
This is a matter of detailed importance but, since the House has never—to the


best of my knowledge—laid down in Standing Orders the way in which our Select Committees proceed with respect to the type of activity I am dealing with, I should have thought that it could be left to the Committee concerned to give adequate notice to all members of the Committee about action it intends to take before any recommendations are finalised. If it transpired that it was not satisfactory to leave the matters undefined in that way, it would be much better to deal with it by amendment of the Standing Orders of the House by simple Resolution of the House rather than to try to embody it in an Act of Parliament, which is debatable in another place, too. This would affect only a House of Commons committee. That is a more appropriate way to deal with it.
Clause 4 reminds us of the different types of Statutory Instrument that the Bill is intended to encompass.

Mr. Niall MacDermot: As we do not have the Statutory Instruments Act, 1946, before us, would the hon. Gentleman tell us whether paragraph (a) deals with positive or negative statutory instruments?

Mr. Maxwell-Hyslop: It deals with negative Resolution procedures.
The hon. and learned Gentleman may notice the importation of the expression "forty effective days", which is defined in Clause 5. Section 5 of the Statutory Instruments Act, 1946, defines the period of 40 days in which negative Resolution Prayers may be moved. To save repetition, when I was earlier describing the General function of the Bill I tried to outline at some length the somewhat bizarre results of the definition in that section. Conversation with colleagues has shown that a substantial number of hon. Members are not aware how bizarre the definition is. They imagine that the 40 days in which we are permitted to pray against the confirmation of negative Resolution Statutory Instruments are 40 real days—in other words, 40 opportunities. This is far from being the case.
In paragraph (b), in regard to Section 4 of the Statutory Instruments Act, 1946, I did not need to use the number "forty" because it seemed to me that "ten" would more nearly meet the needs of both the Government and the critics of the

Measure. The Statutory Instrument covered by paragraph (b) is one that becomes immediately effective but can subsequently be cancelled. There are Statutory Instruments subject to negative Resolution which do not become effective until the expiry of the 40 days. There are also Statutory Instruments which become effective immediately but can subsequently be cancelled.
It seemed to me, although this would be a perfectly reasonable point on which to entertain discussion in Committee, that where a Measure becomes of immediate effect the House should amend it much more speedily than in 40 effective days if it wishes to amend it. If it needs amending, it should be amended as soon as possible. If it does not become effective until after the 40 days, it will not suffer from the amendments being delayed until the fortieth day if necessary.
In Clause 5 I define "effective days" as follows:
In this Act 'effective days' means days upon which the standing orders of the House of Commons permit the House to entertain resolutions of amendment under section 4 of this Act, but does not include days upon which such resolutions cannot be debated or determined because the House of Commons is engaged in swearing in honourable Members at the beginning of a new Parliament.
To the best of my knowledge, the reason why Prayers cannot be entertained when a new House is being sworn in is not because the Standing Orders of the House specifically exclude it but literally because the House is otherwise engaged. For this reason it was necessary to import that form of words.
We come in Clause 6 to the
Calculation of praying time in respect of statutory instruments".
In this provision we say:
In calculating the period of forty days under sections 5 and 6 of the Statutory Instruments Act 1946 in which either"—
note "either"; previously it was "the House of Commons"—
either House of Parliament may by resolution pray Her Majesty to annul, or not to confirm a statutory instrument, there shall be excluded—

(a) days upon which the standing orders of each House respectively prevent such prayers from being considered; and
(b) days upon which such prayers may not be considered, because that House of Parliament is prevented from considering


such prayers because it is engaged in swearing in its members at the beginning of a new Parliament."


It is quite possible, for obvious reasons, that both Houses of Parliament will not occupy the same number of days in swearing in hon. Members at the beginning of a Parliament. Therefore, that is probably the best way of achieving these twin definitions, bearing in mind the different circumstances and the different numerical memberships of the two Houses.

Mr. Peter Archer: Would the hon. Gentleman enlighten my ignorance by telling me if at present "time" in this context runs during a recess, or is the time occupied by a recess covered by sub-paragraph (a)?

Mr. Maxwell-Hyslop: I think I am right in saying that the clock which counts the 40 days stops when the House is not sitting for a period in excess of five days. This is entirely ludicrous and bizarre, but under this rule Saturdays and Sundays, being only two days, are counted by the clock; but when the House goes into recess for longer than five days, including Saturdays and Sundays, then the clock stops. However, once Parliament has reassembled at the beginning of a new Parliament, the clock immediately starts again.
In gathering the strings together I remind hon. Members, in case I have been unclear in my exposition of the Bill, that, in so far as it redefines the time in which Prayers may be entertained under the negative Resolution procedure and provides that Statutory Instruments be not confirmed by Her Majesty, it affects both Houses of Parliament. In so far as it gives power to amend Statutory Instruments, it gives that power exclusively to the House of Commons, and not to the House of Lords.
There may be those who think that the power should be given to the House of Lords, but I doubt whether that view would recommend itself widely. An adequate measure of protection will be given to the general public by the House of Commons being given this extra power.
I emphasise my motivation. I am not primarily concerned with people who oppose major legislation having a second bite at the cherry. Nor am I primarily concerned with the Opposition of the day

being able to oppose at greater length the exercise of powers which they have already opposed when the enabling Act was passed.
What I am concerned with is the amount of defective draftsmanship that becomes the law of the land because it is inadequately examined and because there is no power to examine it even when the defectiveness is detected. The process of amendment at present is unofficial. I exclude certain cases which are famous because they are so rare. It was in this Parliament, for example, that the Minister concerned withdrew the initial Order setting up the Agricultural Training Board because of criticism in the House and subsequently retabled an altered Statutory Instrument. That was entirely commendable. It received widespread publicity because it was such a rare thing to happen.
On the contrary, it is in no way rare for Ministers to accept Amendments either on the Floor of the House or in Committee on a Bill. They often do so and are grateful for those Amendments. Very often, the Amendments proposed are not of a party political character. This House in its richness has, among its 630 Members, experts on practically every subject, I am happy to say, and many hon. Members have a more up to date and cogent expertise than the civil servants sitting in the Official Box, advising Ministers—although they are not operating at the moment.
I take as a case in point a Measure which was enacted with the full support of both sides of the House and which underwent a tremendous amount of amendment which turned it into an effective Act of Parliament. The Firearms Act, 1965, was drafted by the Home Office originally, presumably by people who considered themselves to be expert. But it was drafted in such a manner that one could drive a coach and horses through it. There was no definition of a loaded weapon, so that someone carrying a weapon in the public street with the magazine full of ammunition but without a cartridge in the breech would have been regarded as carrying an unloaded rather than a loaded weapon.
Those of us who served on the Standing Committee considering the Bill greatly appreciated the way in which the


right hon. Gentleman the present Secretary of State for Wales, then Under-Secretary of State for the Home Department, welcomed Amendments. Indeed, he paid tribute to them on Third Reading. No one suggests that the Home Office deliberately drafted an important Measure with incompetence. It was just that there were severe limitations on the technical knowledge of those whose duty it was to advise the then Home Secretary. This is not something unique to the Home Office. It is true of every Government Department that there are limitations to their expertise.
I remember not so long ago a Statutory Instrument which appeared in draft. It was to do with eggs. I forget the details, but it was intended to stop people from deeply refrigerating eggs and then selling them as fresh. But it was drafted in such a way that, if anyone had used any device to prevent a room from getting intolerably hot so that eggs would not go rotten at once, those eggs would have fallen within the definition of refrigerated eggs and, therefore, into a special category. There being no procedure for amendment of a Statutory Instrument on the Floor of the House, I telephoned the Department and pointed this matter out. The Statutory Instrument was corrected and reprinted.
I am not saying that, at the moment, there are not unofficial channels which can be and sometimes are used, but, apart from the redefining of "effective days"—the desirability of which I am sure no one could dispute—the gravamen of my case is as follows. When legislation which passes through this House needs such a wide degree of amendment as has been shown constantly by the appearance of drafting Amendments on the Order Paper, it stretches the bounds of probability beyond all reason that double the amount of legislation passing into law by Statutory Instruments by some entirely miraculous process should ensure that these defects are absent.
Therefore, if we want to achieve two ends which I should have thought every hon. Member would want to achieve—first, to take to heart the criticism of the courts about passing badly drafted legislation, which includes Statutory Instruments, and, secondly, to make Parliament

a more relevant and more effective body than it is at the moment—it seems that this Measure offers a very real opportunity of achieving them.
I should be very happy indeed, as would the other sponsors of the Bill, if it is given a Second Reading, to discuss with an entirely open mind its detail in Committee and on Report. We could discuss whether 40 effective days is the right number and whether the right time to pass a Motion putting a Bill into effect is after Third Reading or not. I have an open mind on that. I certainly would not have the House believe that in choosing 40 effective days and 10 effective days respectively, I have seized upon an arithmetical number which I believe is inherently better than any other. I chose 40 effective days because under the existing provisions it is 40 days and because I suspect that most hon. Members believe 40 days already means 40 effective days.
With that explanation of what I confess is admittedly a somewhat complex subject, I hope that the House will give the Measure a Second Reading.

3.47 p.m.

Mr. Niall MacDermot: I congratulate the hon. Member for Tiverton (Mr. Maxwell-Hyslop) on two things. The first is his assiduity in attendance which has enabled him to speak to his Bill. I was one who came to this House at what I thought a sufficiently early hour one morning to be able to move a Motion for a Ten-Minute Rule Bill. I found myself defeated by the hon. Member, who had arrived at a much earlier hour and had seized, as he was perfectly entitled to do, upon a defect in our procedures which enabled him to grab for his party all the opportunities for Ten-Minute Rule Bills this Session.
The hon. Member incurred a certain amount of odium on this side of the House which added to his difficulties in finding time to debate this subject, but he has attended regularly and, whereas we have seen that today certain Bills were reached but not discussed because their sponsors were not here, I congratulate him on being here and seizing his opportunity.
Secondly, I congratulate the hon. Member on the way in which he has presented his Bill. He has done so with great clarity. It was a lesson to some others to see how he presented his Bill,


so far as I could see without a single note and with model clarity. I hope that he will not think that I have risen now out of any vindictive sense to oppose his Bill, for I assure him that that is not so. He has raised a most interesting subject, but one which I shall seek to persuade the House should not be dealt with in the way proposed in the Bill.
The hon. Member advances his case primarily on the grounds that there are so many drafting defects in legislation that it is not right that a large body of legislation, namely, subordinate legislation, should go through without the House having any powers to amend. That is an attractive argument, but the hon. Member fails to pay sufficient regard to the purpose of delegated legislation. It is because the House recognised a long time ago that the volume of legislation, and of necessary legislation, has become such that the House simply cannot scrutinise properly the whole of it. It must, therefore, try to divide the legislation into two parts—that which should go into Statutes and which the House will consider in detail, and that which ought to be delegated to Ministers, subject to the control of the affirmative or negative Resolution procedure.
It is essential to this distinction that there should not be the power to amend delegated legislation, otherwise we will be back where we started—that, is cluttering up the procedures of the House with a vast amount of work it is unable to undertake. The hon. Member has clearly understood and recognised this. He therefore puts Clause 2 into his Bill, which would immediately take away nearly everything which on the face of it the Bill proposed to do; namely, as the hon. Gentleman himself explained, it would ensure that this new procedure would not apply to all delegated legislation.
If the primary reason for the Bill is, as the hon. Member suggests, to enable us to perfect delegated legislation by being able to amend it, surely that should apply to all delegated legislation. How is the House to know at the end of the Third Reading of a Bill whether the delegated legislation to be made under that Bill will be subjected to error in drafting? The House cannot tell in advance. Therefore, if that is the true

criterion, the House would be unable to decide whether to pass a Resolution such as is proposed in Clause 2.
It is my belief that the real object of this is not, as the hon. Gentleman has suggested, to enable us to correct drafting defects. I think that the real object emerged from a remark which he made almost in parentheses in a reference to the kind of legislation which is passed under the Agriculture Acts giving power to alter or amend procedures for agricultural grants.
I believe that what the hon. Member really wants to do is to have the power to alter not the drafting but the substance of that delegated legislation. I believe that Clause 2 is really intended to direct the mind of the House at the end of a Third Reading to whether it should try to claw back, as it were, some of the delegated legislation power which it is giving to the Minister in passing the Bill.
I do not believe that this half-way house will work. We must make up our minds. We either give the power of delegated legislation or we reserve it to the House.
The evil that is suggested is not as great as might at first appear. That was illustrated by the example which the hon. Member gave about the delegated legislation which he was unable to identify but which apparently related to the refrigeration of eggs. As the hon. Gentleman said, as soon as he realised that there was a defect in that legislation, he contacted the Minister; and it was, one gathered, a relatively simple and speedy matter for the Minister to lay before the House another piece of delegated legislation which amended the defect.
This is what happens. We, who in our professional capacity have to plough through delegated legislation, are well aware that there tends to be a great deal of amending legislation. That itself illustrates that it is a relatively simple matter. When there is a defect in a Statute it is far more serious, because it requires an Act of Parliament, with all the complicated procedures that that entails, going through both Houses of Parliament—Second Reading, Committee, Third Reading, Report and all the rest of it. This does not apply to delegated legislation, which can be dealt with quite simply.
Therefore, I do not think that the evil is as great as is suggested. I think that


it was the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) who put forward the suggestion that in a much more limited field this House should have a power to amend—namely, where taxation or matters akin to taxation are dealt with by delegated legislation. The suggestion was that there should be power in this House to vary the amounts of any order which, in effect, imposes or varies a rate of taxation. It may be amending a levy which is imposed under a Statute which is frequently dealt with by delegated legislation.
Since this is dealing with a matter of tax, the level of which is peculiarly the responsibility of this House, it seems to me that a much more narrow provision of that kind might well merit the attention of the House.

Mr. Charles Doughty: I am interested in what the hon. and learned Member is saying, but would it not have been better had the Deputy Leader of the House been here to explain those matters and the history of the proposals made by my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) and others?

Mr. MacDermot: I do not think it is for the Deputy Leader of the House to be here. This is a Private Members' Day. We all recognise that it is a matter of surprise that this Bill has been reached at all. I have congratulated the hon. Member for Tiverton on being here to seize his opportunity, but I do not think there is any reason for criticising the Deputy Leader of the House. It is not that I am trying to talk out this Bill. I thought for one moment that that was the intention of the hon. Gentleman himself, as he occupied such a large proportion of the time available in moving his Bill.
With regard to the hon. Gentleman's point relating to 40 days, I wonder whether this is as bad as he suggests or whether his proposed Amendment would make matters any better. As I understand it, the effect of his definition of effective days is that there would always be at least 10 calendar weeks since there could only be four effective days in any calendar week. There will be at least 10 effective weeks before there could be any finality about any

delegated legislation unless this special procedure referred to in Clause 4 (b) were adopted. That does not seem to me to be a very satisfactory procedure. I hope the hon. Gentleman is satisfied now that the Deputy Leader of the House has arrived in the Chamber.

Mr. Peter Archer: Would my hon. and learned Friend agree that the purpose of the 40 days' period is to give time for thought—not to give 40 separate opportunities for praying?

Mr. MacDermot: Yes, I believe that to be the intention of the present legislation, and I would have thought it was right. The hon. Gentleman was complaining that weekends do not count. In my experience, if one is interested in a piece of delegated legislation, weekends are the most useful period in which to get down to it and give thought to it.
The hon. Member has drawn attention to one anomalous case where injustice or difficulty might have arisen under the present rules. If he has not already done so, perhaps that could be properly referred to the Select Committee on Procedure.

It being Four o'clock, the debate stood adjourned.

Debate to be resumed upon Friday next.

DIVORCE (SCOTLAND) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

INDUSTRIAL RELATIONS (IMPROVEMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

RACE RELATIONS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

PROCEEDINGS AGAINST ESTATES BILL [LORDS]

Read a Second time.

Bill committed to a Committee of the whole House.—[Mr. Peter Archer.]

Committee upon Friday next.

AMUSEMENT ARCADES (REGULATION) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

COPYRIGHT BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

STAMP BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

LABELLING OF FOOD AND TOILET PREPARATIONS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

ANTI-DISCRIMINATION BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

EQUAL PAY BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

PERIODICAL PUBLICATIONS (PROTECTION OF SUBSCRIBERS) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

REPRESENTATION OF THE PEOPLE BILL

Order read for resuming adjourned debate on Second Reading [6th February].

Hon. Members: Object.

Debate further adjourned till Friday next.

INFANTICIDE BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

TRADE DISPUTES BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

SUNDAY ENTERTAINMENTS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

GENERAL RATE ACT, 1967 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

CHILDREN AND YOUNG PERSONS ACT, 1963 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

HISTORIC WRECKS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

BUSINESS NAMES REGISTRATION (MR. E. S. PAYNE)

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Ernest G. Perry.]

4.2 p.m.

Mr. George Wallace: I am very glad to reach this Adjournment debate. The waiting period has had its moments of tension.
I am grateful to have this opportunity to raise a matter which in the first instance affects a small businessman who is a constituent of mine, but the principle behind which, I am convinced, affects a large number of people.
While industry is increasingly dominated by giant combines, we must recognise that there is still a place for the little man. Quite a number of small specialist firms play a vital part in assisting the operations of their larger brethren. The man setting up his little business in manufacturing today faces considerable obstacles, particularly in regulations to be observed. Capital is of vital importance to him, and any unnecessary use of capital involved in the observance of regulations or the law could frustrate what could be useful contribution to the country's economy, particularly in exports.
A short while ago, as my hon. Friend the Parliamentary Secretary to the Board of Trade is only too well aware, I took up with her the case of a constituent, Mr. Payne of Norwich, now operating a company manufacturing data input and associated computer equipment. Originally he hit on the idea of calling his company Keytronics Ltd. He was advised by the Business Names Registry that the name was acceptable. Shortly afterwards, the Companies Registry said that the name was acceptable for registration, and later a search in the Trade Marks Registry revealed that the word "Keytronics" was not registered as a trade mark. Subsequently, however, it transpired that another firm was using the name "Keytronics", and, after negotiation, it was found that this other firm had registered the name with the Business Names Registry 12 months earlier. As a result, my constituent had to cease trading, at least temporarily, until a new company could be formed under the present name of F. S. Payne and Son (Norwich) Ltd.
The most important effect of this change and delay was that it cost my constituent £300 to £500 of his vital capital.
I wrote to my hon. Friend, and her reply of 11th February included the following passage—I should read it slowly because, quite frankly, it is worded in such a way that it needs to be—
The Registrar has power to refuse to register a name which in his opinion is undesirable, but he does not in general consider a name to be undesirable solely because it is the same as one already registered. Similarly, the Registrar of Companies, who regards as undesirable a proposed name for a company which is too like the name of a company already registered, does not in general regard the existence of a registered business name as a bar to his registering a company by a similar name.
After rereading that several times, I go round in ever-increasing circles.
The letter goes on:
For these reasons no objection was raised in February 1969 to the proposed registration by Mr. E. S. Payne of the business name 'Keytronics' or to the later registration by him of a company by the name Keytronics Ltd., despite the earlier registration as a business name of 'Keytronics' by another proprietor.
This is ridiculous. In the interests of the small businessman, the fact of an earlier registration should be revealed.
Later in her letter, my hon. Friend quoted from the Jenkins Committee on Company Law, referring in particular to paragraph 443 of its report, which implied that it was impossible to compare a list of 400,000 company names with a register of 800,000 business names, and stated for that reason that the Companies Registry and Registry of Business Names do not attempt to maintain the type of contact which would have avoided a lot of trouble to my constituent and saved him £300 to £500.
I find this almost incredible in this day and age. With modern filing methods, such an operation could be one of quick simplicity. In the Library of the House, we have some young and extremely attractive lady assistants—

The Parliamentary Secretary to the Board of Trade (Mrs. Gwyneth Dunwoody): Hear, hear.

Mr. Wallace: I say that because I admire their efficiency—lest it get me into trouble in certain quarters at home.
These young ladies demonstrate daily the miracles of modern reference systems in dealing with the often only too vague requirements of hon. Members. We all know how efficient their filing system in our own Library is. I am sure that these young ladies could introduce a system for the Board of Trade which would entail a fairly simple operation and be able to identify and compare all these names without great difficulty. My constituent, through his association with the computer industry, could do even more. Computers nowadays can give answers a darned sight more quickly than do some of the out-of-date methods at present used in some Departments.
It is not impossible to avoid the difficulties, pitfalls and expenses at present entailed. My constituent, in good faith, lost £300 to £500 in the labyrinth, with, I am informed, no chance of recovery from anyone. I realise that this state of affairs must affect quite a number of people, but I consider that he should have some recompense.
After considering this matter carefully for some time with my constituent and with others, I feel that it is time that a more up-to-date system was introduced at the Board of Trade to encourage and assist, not obstruct and financially penalise, people like Mr. Payne.
I hope that my hon. Friend and her Department will give the matter further consideration, not only so far as it concerns Mr. Payne but also other people, and, more important, arrange for close contact between the Business Names Registry and the Companies Registry, which appears to be completely nonexistent at present. I get the impression that they have not even been introduced to each other.

Mr. A. H. Macdonald: This appears to be an astonishing story of incompetence. My hon. Friend and I are members of the Estimates Committee. May I ask whether he has inquired when the Business Names Registry was last investigated by the Estimates Committee? Presumably it is spending public money. I wonder what value we are getting for that money if it cannot do a simple thing like telling people whether someone is already registered.

Mr. Wallace: My hon. Friend will know that the Estimates Committee is


allocated subjects each Session and that its investigations take some time. Some of us are involved in very difficult investigations at the moment. Possibly the matter can be investigated at some time.
There appears to be no contact between the two registries. I believe that there should be contact and discussion between them. Any move along these lines can only be constructive and helpful in avoiding unnecessary expense and frustration to people who deserve encouragement. The whole set-up needs further consideration. To be fair to my hon. Friend, I realise that she cannot bind or commit the Minister. However, I hope that she will undertake to draw his attention to the need to modernise what is clearly an out-of-date and frustrating system.
My constituent has been extremely patient in this situation. Some people would have made far more provocative approaches. Although he realises that the situation is pretty hopeless concerning recompense to him, there is a principle involved. I therefore urge my hon. Friend at least to say that she will bring the matter to the attention of the Minister. Perhaps something more satisfactory can be achieved for the sake of those who are trying to set up in business for themselves and at the same time, let us face it, help the nation in its economic recovery.

The Parliamentary Secretary to the Board of Trade (Mrs. Gwyneth Dunwoody): I begin by thanking my hon. Friend for the courteous way that he has moved the Adjournment of the House on this interesting subject. I am also grateful to him for raising this matter as it gives me the opportunity to explain what the two registrars—the Registrar of Companies and the Registrar of Business Names—can and cannot be expected to do in regard to similar names.
I will set out a little of the history of this matter. In February, 1968, Keytronics was registered as the business name of a business to be carried on from a London address and described as "mail order, electronic components". The proprietor of that business name is not associated in any way with my hon. Friend's constituent, Mr. E. S. Payne.
A year later, in February, 1969, Mr. Payne wrote to the Registrar of Business Names to say that he was about to go into the business of manufacturing electrical components and had it in mind to use the name Keytronics. He asked to be informed how he should set about registering a business name. The registrar replied that the name Keytronics was acceptable for registration, and he enclosed with his letter an application form.
In the event Mr. Payne did not apply to register a business name, but instead formed a company which, on 9th May, was registered by the name Keytronics Ltd. Solicitors and agents, acting on Mr. Payne's behalf, made the normal inquiries before registration to ascertain from the Registrar of Companies that the name Keytronics Ltd. was available for the company which Mr. Payne wished to form.
Soon after Mr. Payne's company was registered solicitors acting for the proprietor of the business name Keytronics wrote to Mr. Payne to suggest that the activities of Mr. Payne's company might harm their client's business.
Mr. Payne evidently came to the conclusion that there was ground for this suggestion as, at the company's request, the name of his company was changed from Keytronics Ltd. to E. S. Payne & Son (Norwich) Ltd. on 24th July, 1969. In a letter to me, my hon. Friend said as he has said today, that it had cost the company £300 to change its name.
My hon. Friend has said that the company would not have been put to this expense if the Registrar of Companies had informed himself of the registration in 1968 of Keytronics as a business name and had regarded that registration as a reason for not accepting Keytronics Ltd. as the name of Mr. Payne's company. Alternatively, my hon. Friend has said that Mr. Payne would not have proposed Keytronics Ltd. as the name of his company if, when Mr. Payne had inquired about registering a business name, the Registrar of Business Names had informed him that the name Keytronics was already a registered business name and was not available for registration as the name of the business Mr. Payne intended to set up.

Mr. Wallace: A great deal of the loss was due to the fact that he had to cease trading and that there was legal expense involved.

Mrs. Dunwoody: I understand the difficulties that Mr. Payne has faced, and I am sorry that this has come about.
The Registrar of Companies has a duty to refuse to register a company by a name which in the opinion of the Board of Trade is undesirable, and one of the most common reasons for regarding a name proposed for a company as undesirable is that it is too like the name of an existing company. But a name proposed for a company is not regarded as undesirable solely because it is too like, or even identical with, a registered business name. The Registrar of Companies does not search the register of business names before deciding whether to accept a proposed name for a company, and he acted in accordance with established practice when he informed Mr. Payne's solicitor and agents that the name Keytronics Ltd. was available, and when in due course he registered Mr. Payne's company by that name.
My hon. Friend's other contention is that the Registrar of Business Names, when replying to Mr. Payne's inquiry, should have informed him that the name Keytronics was already registered and for that reason was not acceptable as the name of Mr. Payne's business. The Registrar of Business Names has power to refuse to register a name which in his opinion is undesirable. But, unless a name is very well known, he does not regard it as undesirable solely because it is similar to, or identical with, a name already on his register. He does not search his register when considering whether a name is acceptable for registration, and he acted in accordance with established practice when he informed Mr. Payne that the name Keytronics was available.
I will now explain why the practices of the two registrars are those that I have just described. The main concern of each registrar when exercising his power to refuse to register a name is the protection of the public. He is concerned to ensure that the public is not misled in a way which might harm it

by names which are falsely indicative of, for example, Royal patronage or a connection with some official body, or of the company's or firm's standing or business.
The Registrar of Companies is also concerned to ensure that the public is not misled by confusing one company with another, and to the extent that he is successful he also incidentally protects a company's vested interest in its name. There is, I appreciate, a case for holding that the registrars should do more and try to ensure that the public is not misled by confusing a company with a trader trading under a business name similar to the name of the company, or by confusing two traders trading under similar business names. But, as most business names are registered by small concerns, the case is not a strong one.
The customers of a small grocer trading under a business name are unlikely to come to harm, even if a company running a chain of shops were to be registered by a similar name, and it is even more unlikely that it would be harmed by the proprietor of another shop being permitted to register a similar business name. However, the conclusive argument for not requiring more of the registrars is a practical one which arises from the very large number of names on the two registers. The Jenkins Committee on Company Law, from which my hon. Friend has quoted today, said in its report:
We have been sufficiently impressed by the difficulties facing the Registrar of Companies—with a register of 400,000 companies—in preventing the use of too similar company names to be convinced that it would be impracticable to prevent similarities in the register of 800,000 business names, and still more impracticable in any combined register of over one million company and business names such as some witnesses have proposed. We therefore do not think that the Registrar of Business Names can reasonably be expected to do more than he does at present with regard to similar names.
The committee's reference to a combined register shows that it might have added that it did not think the Registrar of Companies could reasonably be expected to do more than he does at present.
I take the point made by my hon. Friend that, with the advance of electronics in general, a great deal of highly


expensive equipment might conceivably deal more efficiently with this problem, and I am sure that the Companies Department of the Board of Trade would welcome a vast amount of expenditure being injected into its day-to-day work. Whether this would be justified by practical results is open to a certain amount of discussion.
This problem was looked at by the Jenkins Committee, an independent committee which took a great deal of evidence and examined the existing practices of the Companies Department of the Board of Trade. Although I am quite happy to pass on to my right hon. Friend the President of the Board of Trade the views expressed this afternoon by my hon. Friend, I do not believe that a case of sufficient strength has so far been made to justify any alteration in existing practices.

Mr. Macdonald: I recognise the practical difficulties to which my hon. Friend has referred, but if they are so conclusive why does the Registrar of Business Names keep a list at all? Why does he not confine himself to saying whether names are desirable or undesirable? What is the point of keeping a list if it is never to be used for purposes of com-

parison? We are spending either too much or too little.

Mr. Wallace: I should like to go a little further. The Inland Revenue is stocking up with computers which will be available in Government Departments for use. This would be a simple solution.

Mrs. Dunwoody: I am grateful to my hon. Friends for their suggestions, which will always be examined with great care by my right hon. Friend. I cannot, however, do other than find a certain amount of wry amusement in two important responsible members of the Estimates Committee so gaily committing my Department to what would be a very large expense for what could not, perhaps—I put it no higher—be justified by the benefit that would be felt by the taxpayer and those who use the facilities offered at Companies House.
If there is any comfort that I can offer my hon. Friends this afternoon, it is that I will certainly study the points which they have made and pass them on carefully to my right hon. Friend the President of the Board of Trade.

Adjourned accordingly at twenty-four minutes past Four o'clock.

Question put and agreed to.